Lutzeier v. Citigroup, Inc. et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Compel Discovery (ECF No. 79) is DENIED, in part, and GRANTED, in part, in accordance with the discussion outlined above. The Court orders Defendants to supplement their document pr oduction within twenty (20) days, as outlined above, and to provide Plaintiff with a privilege log within sixty (60) days. IT IS FURTHER ORDERED that Plaintiffs Second Motion to Compel Discovery (ECF No. 88) is DENIED. Signed by District Judge Ronnie L. White on 2/2/15. (JWJ)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FRED E. LUTZEIER,
Case No. 4:14-cv-00183-RLW
CITIGROUP INC., et al.,
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Compel Discovery (ECF No. 79)
and Plaintiffs Second Motion to Compel Discovery (ECF No. 88). These matters are fully
briefed and ready for disposition.
Plaintiff contends he was a whistleblower who was terminated by Defendants in violation
of the Sarbanes-Oxley (" SOX") Act and the Dodd Frank Act, as well as claims for violation of
the Missouri public policy exception to wrongful discharge, and for age discrimination in
violation of the Missouri Human Rights Act. Plaintiff alleges that he was employed as a director
in the Internal Audit Group ("IA Group") in Citigroup Management Corp.' s ("CMC") offices in
O' Fallon, Missouri from February 27, 2012 to February 25 , 2013.
On February 25, 2013,
Plaintiffs employment with CMC was terminated, effective April 26, 2013. Defendants claim
that Plaintiff was terminated as part of a global reorganization of the IA Group and based upon
the location of his position and his "relatively brief' tenure at CMC. (ECF No. 87 at 3).
Generally, " [p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense-including the· existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and location of
persons who know of any discoverable matter." Fed.R.Civ.P. 26(b)(l). The Federal rules further
provide for limits on discovery requests. Specifically,
court must limit the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking discovery
has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties'
resources, the importance of the issues at stake in the action, and the importance
of the discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii); Halbach v. Great-W. Life & Annuity Ins. Co., No.
4:05CV02399 ERW, 2007 WL 2702651 , at *1 (E.D. Mo. Sept. 12, 2007). Rule 37 of the Federal
Rules of Civil Procedure governs motions to compel discovery.
Plaintiff's First Motion to Compel
A. General Objections
Plaintiff contends that the Court should overrule Defendants' general, boilerplate objections.
In response, Defendant argues that (1) Plaintiff never addressed this issue during their meet and
confer, (2) Defendants agreed to produce documents for the requests for which they lodged only
a general objection, and (3) Plaintiff also incorporated his general objections into each and every
request, as Defendants did. (ECF No. 87 at 7).
The Court will overrule Defendants' general objections. See Kooima v. Zacklift Intern. Inc.,
209 F.R.D. 444, 446 (D.S.D.2002)("[B]oilerplate objections are unacceptable.").
have stated that they have not withheld any documents based upon general, boilerplate
objections. (ECF No. 87 at 6). Nevertheless, the Court orders Defendants to withdraw their
general objections (except for privilege) and respond to Plaintiffs discovery requests
B. Specific Objections
1. Request No. 1: Plaintiffs role with LOIS/COSMOS
Plaintiff notes that Defendants objected to producing documents relating to Plaintiffs
role, responsibilities and communications in connection with the LOIS/COSMOS audit. (ECF
No. 80 at 5). Defendants contend that they have produced responsive, non-privileged documents
and will continue to do so. (ECF No. 87 at 10). They further state that this issue was not
discussed in-depth during the October 16, 2014 meet and confer. The Court orders Defendants
to continue to produce documents in accordance with Rule 34.
2. Request No. 2(a)-(i): Documents Relating to Plaintiffs Employment and Termination
Plaintiff seeks documents related to his employment with CMC and his termination,
including (i) the evaluation(s) of Plaintiffs job performance; (ii) the selection of Plaintiff to
attend Citi' s executive management training and/or leadership development program(s); (iii) the
benefits and compensation paid to Plaintiff during such employment; (iv) any coaching or
disciplinary actions taken with respect to Plaintiff during such employment; (v) the personnel file
maintained with respect to Plaintiff; (vi) the personnel policies and/or handbooks in effect during
Plaintiffs employment; (vii) the severance policies and procedures in effect during Plaintiffs
employment, (viii) the reduction in force policies and procedures in effect during Plaintiffs
employment, and (ix) the alleged elimination of Plaintiffs position of employment. (ECF No.
80 at 8). Plaintiff claims this information is relevant to his claims as to whether he was meeting
his employer' s reasonable expectations, whether he was retaliated against and lost wages, and
whether Plaintiff was terminated as part of a reduction in force ("RIF").
During the October 16, 2014 call, Defendants contend that they agreed to produce
documents responsive to Request No. 2. (ECF No. 87 at 11-12). Defendants, however, stated
that Plaintiff was not selected for the "Executive Management Training Program" (see Request
No. 2(b)) but Defendants agreed to produce documents relating to the program for which
Plaintiff was selected. With respect to Requests Nos. 2(g) to 2(i), Defendants state that they
offered to produce documents sufficient to show Citi ' s policies in effect during Plaintiffs
employment. (ECF No. 87 at 12).
The Court holds that Defendants should produce documents in accordance with their
October 16, 2014 agreement with Plaintiff. In addition, Defendants shall produce documents
related to Plaintiffs employment, including the training program attended by Plaintiff and Citi' s
policies in effect during Plaintiffs employment.
3. Request Nos. 3(a)-(s) and 4: Documents Relating to Plaintiffs Termination
Plaintiff seeks documents related to the development and implementation of the
Organizational Design principles with respect to Defendants' alleged RIF in Citi' s Global IA
Group and/or function, including the age of all IA employees worldwide. (ECF No. 80 at 8).
Plaintiff contends the sample size suggested by Defendants (the IA Group employees of
Defendants' U.S. mortgage business) only contains 32 employees and is too small to be a proper
comparator. (ECF No. 80 at 8-10).
Defendants state that they agreed during the October 16, 2014 conference to
documents responsive to these requests. (ECF No. 87 at 12). Defendants contend that they
offered to provide information about the ages and title of IA Group employees of Defendants'
U.S. mortgage business (the subgroup to which Plaintiff was assigned) during Plaintiffs
The Court holds that Defendants shall produce information related to the IA Group
employees of Defendants' U.S. mortgage business during Plaintiffs employment, including the
ages and title of the members thereof. Plaintiff has failed to demonstrate how employees in other
groups, during other periods, are relevant to his claim. Further, the Court finds that the sample
size of 32 is sufficiently large to evaluate his claims. If, after review of Defendants' production,
Plaintiff later feels that this sample size is insufficient, he can resubmit this request for
4. Request No. 5(a)-(g): Documents Relating to Plaintiffs Attempt to Find Employment
with Defendants Following Termination
Plaintiff seeks documents consisting of and/or reflecting Plaintiffs applications for
employment with Defendants following his termination. (ECF No. 80 at 12-13). Plaintiff claims
this information is important to show he mitigated his losses. Defondants state Plaintiff did not
raise this issue during their October 16, 2014 meet and confer call. Further, Defendants state that
they have agreed to produce responsive, non-privileged documents in their possession, custody,
or control. (ECF No. 87 at 10). 1 According to Defendants' representations, this issue is moot
Plaintiff does not address this alleged agreement in his Reply.
pursuant to the agreement of the parties.2 The Court, therefore, orders Defendants to produce
documents as agreed and to produce the documents in accordance with Rule 34.
5. Request Nos. 15, 16, and 17: Job Descriptions for Three Identified Employees
Plaintiff requests the job descriptions of Shelly Rayford and Steve Krause (the two other
similarly situated C-15 level directors in IA) as well as for Defendant Champney. (ECF No. 80
at 13-16). It does not appear that Defendants responded to this in their opposition. (ECF No. 87,
passim). 3 Therefore, the Court grants Plaintiffs Motion with respect to Request Nos. 15, 16, and
6. Request No. 19: Correspondence between Steve Champney and Sanjiv Das
Plaintiff contends that the correspondence between Champney and Sanjiv Das concerning
Plaintiff is relevant to his allegations that: (i) Mr. Das, CitiMortgage' s former CEO, told
Champney that the LOIS/COSMOS audit should stop, and (ii) Plaintiffs termination was
causally related to: (a) Plaintiffs work on the audit, (b) Plaintiffs reporting of concerns about
potential SOX violations discovered pursuant to this audit to Champney; (c) Plaintiffs scheduled
meeting with Mr. Das and other executives to discuss such concerns only days before Plaintiff
was fired, and (d) the potential embarrassment and/or other negative consequences that would be
caused by reason of the audit. (ECF No. 80 at 18-19). Defendants contend that this issue was
not discussed during the October 16, 2014 meet and confer. (ECF No. 87 at 11). Defendants
maintain that they agreed to produce documents responsive to this request. The Court orders
The Court notes that Plaintiff did not address this or any specific document request in his
Reply. The Court, therefore, is left with Defendants' representations in their opposition as the
last word in this matter and that this issue has been resolved. The Court further admonishes the
parties to abide by the meet and confer process so that issues that have been resolved (or that
could be resolved) do not unnecessarily take up the Court' s time and resources.
The Court notes that Defendants offered to produce this information in response to Request
Nos. 22 and 23.
Defendants to produce documents as agreed and to produce the documents in accordance with
Rule 34. See also footnote 2.
7. Request No. 20: The Consent Orders
Plaintiff complains that Defendants only offered to produce the two consent orders issued
prior to Plaintiffs employment.
(ECF No. 80 at 25). Defendants state that they offered to
produce the two consent orders entered into prior to Plaintiffs employment and Defendants are
not aware of any other consent orders that are relevant to this case. (ECF No. 87 at 15). Based
upon Defendants' representation that there are only two relevant consent orders, the Court orders
Defendants to produce those two consent orders. If Plaintiff becomes aware of other relevant
consent orders, Plaintiff shall specifically request those consent orders from Defendants. 4
8. Request Nos. 21 and 58: Lisa Greer Employment Information
Plaintiff alleges that he was replaced with a younger, less qualified employee, Lisa Greer.
(ECF No. 80 at 27). Plaintiff requested Defendants produce documents related to Ms. Greer' s
employment with Defendants, including (i) her job descriptions, (ii) her applications for
employment with Defendants, (iii) her performance evaluations, (iv) her compensation and
benefits, (v) her disciplinary and/or coaching record, and (vi) the manner of her separation from
employment. (Id.) During the October 1, 2014 telephone call, Defendants contend that they
agreed to produce documents related to Ms. Greer' s employment with CMC for the period of
Plaintiffs employment (February 2012 through April 2013). (ECF No. 87 at 15). Defendants
state that Plaintiff has not identified any basis for requesting Ms. Greer' s confidential personal
information outside of the dates of Plaintiffs employment.
As discussed later, the Court is ordering that "consent order" be added tq the list of search
terms for Defendants to search their records.
The Court finds that, given Plaintiffs allegation that he was replaced by Ms. Greer, Ms.
Greer' s employment information might be relevant outside of the dates of Plaintiffs
employment, particularly to demonstrate her qualification for her position. The Court, therefore,
orders Defendants to produce Ms. Greer' s employment information for the last 5 years.
9. Request Nos. 22-23: Performance Reviews/Evaluations, Compensation and Benefits
Paid to Employees in Defendants' IA Group
Plaintiff contends that employees retained in Defendants' IA Group following
Defendants' RIF are potential comparators and, therefore, their employment information
(including benefits, performance, and compensation) are reasonably calculated to lead to the
discovery of admissible evidence. (ECF No. 80 at 17). Likewise, to the extent that the IA Group
members' performance, compensation and benefits were used to determine whether employees
were terminated pursuant to the RIF, then that information is relevant and discoverable. (ECF
No. 80 at 17-18).
Defendants note that during the October 16, 2014 call, Plaintiffs counsel stated that he
was not challenging Defendants' objection to Request No. 22. (ECF No. 87 at 13). Defendant
further argues that Plaintiff has articulated no basis for receiving information responsive to this
"overbroad and extremely burdensome request." (ECF No. 87 at 14). Defendants also state that
Plaintiff agreed to provide a proposal for Request 23 , but failed to do so prior to filing this
Motion. With respect to Request Nos. 22 and 23 , Defendant offers to produce non-privileged
documents that are responsive to these requests for the period of Plaintiffs employment for "the
only four individuals who arguably could have any relevance to Plaintiffs claim: Steve Krause
and Shellie Rayford (the only two other C15-level Directors in the U.S. mortgage subgroup),
Lisa Greer (Plaintiffs alleged ' replacement'), and Defendant Steve Champney." (ECF No. 87 at
The Court believes that Plaintiffs request for information related to the entire IA Group
is overbroad because they are not all proper comparators for Plaintiff. The Court, however,
orders Defendants to provide documents responsive to Plaintiffs requests for the last five (5)
years for Steve Krause, Shellie Rayford, Lisa Greer, and Steve Champney. If, after receiving
this information, Plaintiff feels that additional information is necessary, Plaintiff can revisit this
issue with the Court.
10. Request No. 26-27: Documents Relating to Submissions to OSHA and the MCHR
Plaintiff seeks all documents related to his July 24, 2013 complaint to OSHA and his August
19, 2013 Charge of Discrimination filed with the MCHR and/or EEOC. (ECF No. 80 at 23-24).
Defendants note that they raised no specific objection to producing documents responsive to
these requests, that these requests were not raised during the October 16, 2014 meet and confer,
and that Defendants agreed to produce responsive, non-privileged documents. (ECF No. 87 at
11 ). The Court orders Defendants to produce documents pursuant to their agreement. See also
11. Request Nos. 6, 7, 28-39, 45, 53-57: Documents Concerning the LOIS COSMOS
Software Project and Audit
Plaintiff argues that the LOIS/COSMOS audit revealed, among other things, the failure
and/or other violations of Defendants' internal controls and procedures designed to provide
accurate accounting and financial reporting and to ensure that appropriate authorizations are
obtained at escalating levels for the use of corporate funds, including Citi' s Project Expenditure
Proposal Policy. (ECF No. 80 at 20). Plaintiff requested Defendants produce documents and
correspondence related to: (a) the projected costs of the LOIS/COSMOS software; (b) the actual
costs of the LOIS/COSMOS software; (c) the budgets approved by any of the Citi Defendants
with respect to the LOIS/COSMOS software; and (d) Citi' s Project Expenditure Proposal Policy.
(ECF No. 80 at 21 ). Plaintiff contends that these documents are important to demonstrate that he
had both a subjective and objective belief that he communicated to Defendant Champney failures
and/or violations of Defendants' internal controls and PEP policy that constituted protected
conduct within the meaning of SOX' s anti-retaliation provisions. See Wiest v. Lynch, 710 F.3d
121 , 134 (3d Cir. 2013)(the employee must have both a subjective and an objective belief that
the conduct that is the subject of the communication relates to an existing or prospective
violation of one of the federal laws referenced in Section 806 of SOX).
Defendants argue that Plaintiffs requests should be limited to those documents necessary
to prove his subjective and objective reasonable belief relating to his protected whistleblowing
activity. (ECF No. 87 at 17). Defendants contend that Plaintiff does ·not need to prove an
underlying securities fraud, only that he had a subjective and reasonably objective belief that
there was securities fraud.
Defendants contend that they have already agreed to produce
documents related to the audits of LOIS/COSMOS. (ECF No. 87 at 18). Defendants stand by
their objections to Request No. 53 because it seeks documents related to non-LOIS and
COSMOS capitalized software costs, regardless of the Citi-related entity that incurred those
costs and regardless of whether Plaintiff would have seen them. Defendants contend Request
No. 54 is overboard. With respect to Requests Nos. 55-57, which seek communications with
various regulators relating to capitalized software costs since January 2008, Defendants state that
they agreed during the October 16, 2014 meet and confer call to produce documents to the extent
that they related to the LOIS-COSMOS audit, subject to privileges and whether Plaintiff saw
them or not. 5 Finally, Defendants offer to provide non-privileged communications relating to the
completion of the LOIS-COSMOS audit. Defendants have produced responsive documents in
Defendants also contend that Plaintiffs challenge to any assert to the bank examiner' s privilege
is premature. (ECF No. 87 at 18, n.2).
the files of the custodians, including communications or reports on the completion of the audit.
(ECF No. 87 at 16-17).
The Court finds that Plaintiff has demonstrated that the requested discovery of
LOIS/COSMOS information is reasonably calculated to lead to the discovery of admissible
Under Defendants' proposal, Defendants would determine what LOIS/COSMOS
information Plaintiff needs to prove his case. The Court, however, holds that the requested
information is reasonably related to Plaintiffs whistleblower/retaliation claim and necessary to
aid him in proving .his case.
The Court orders Defendant to produce documents related to
LOIS/COSMOS that are responsive to these requests. Nevertheless, to the extent that these
requests seek documents that are related to expenditures for other (non-LOIS/COSMOS)
software costs, etc., the Court finds that requested information is not reasonably relevant to the
discovery of admissible evidence and denies Plaintiffs Motion to Compel such nonLO IS/COSMOS documents.
12. Request Nos. 48-50: The Termination or Resignation of Three Ci ti Executives
Plaintiff seeks all documents and communications relating to the resignation of three Citi
executives, Sanjiv Das (former CEO of CitiMortgage), Scott Pankoff (former CIO of
CitiMortgage), and Mark Danahy (former Executive Vice President of Sales and CMO of
CitiMortgage). (ECF No. 80 at 26). Plaintiff alleges that "[u]pon information and belief' the
termination of these executives was related to the violations and mismanagement that Plaintiff
reported to Champney pursuant to the LOIS/COSMOS audit.
Defendants argue that Plaintiffs requests are overbroad because they are based upon
Plaintiffs mistaken belief that he must prove an actual violation (not just his reasonable belief
that a violation occurred) and because the requests are not limited to documents concerning the
The Court believes that Plaintiffs requests are overbroad. Defendants shall produce any
documents related to the resignations or terminations of these executives, only to the extent that
such documents relate to the LOIS/COSMOS audits and/or Plaintiff.
13. Privilege Log
Plaintiff contends that he has requested that Defendants produce a privilege log on at least
two occasions, but Defendants has refused to do so. (ECF No. 80 at 29-30). Defendants contend
that, "[i]n the experience of Defendants' counsel," it is "common practice" to produce a privilege
log after the parties have produced non-privileged documents. (ECF No. 87 at 19). Defendants
claim that they do not want to "divert attention from the task of production." The Court orders
Defendants to provide a privilege log within sixty (60) days.
14. ESI Search for Additional Custodians
Plaintiff asks this Court to order Defendants to broaden the search terms of their ESI
search to include the following additional custodians: Michael Corbat (CEO of Citigroup),
Shelly Rayford (C-15 level Director in the IA Group), Brian Leach (Defendants' Head of
Franchise Risk and Strategy), Joan Naumann (Senior Vice President of Fulfillment), Eugene
McQuade (CEO of Citibank), Paul Ince (CFO of CitiMortgage, Inc.), and Martha Merkson (C 13
Audit Manager). (ECF No. 80 at 31-33).
Defendants note that this issue was not raised during the October 16, 2014 meet and confer
call. (ECF No. 87 at 20). Defendants, however, agree to add two additional custodians, Steve
Towner and Mason Bellairs. (ECF No. 87 at 21). Defendants also have collected documents
from Martha Merkson and Shellie Rayford. Defendants maintain that Plaintiffs request to add
additional custodians should be denied because it will not yield admissible evidence. (ECF No.
87 at 20). Defendants further claim that Plaintiff has failed to show that high-level executives
(Michael Corbat, Paul Ince, and Eugene McQuade) have unique or personal knowledge of the
subject matter. Defendants argue that Plaintiff does not identify any specific information that
these three executive may have and that requesting their files is purely harassment. (ECF No. 87
at 22). Finally, Defendants agree to provide information from Mr. Leach and Mr. Naumann
regarding Plaintiffs attempts to obtain employment if Plaintiff provides the dates of his
interviews. (ECF No. 87 at 22).
The Court orders Defendants to add as additional custodians (to the extent that they have not
already been named custodians) Steve Towner, Mason Bellairs, Martha Merkson, Shellie
Rayford, Brian Leach, and Joan Naumann.
The Court denies, without prejudice Plaintiffs
request to add Michael Corbat, Paul Ince, and Eugene McQuade as custodians. At this stage of
the litigation, Plaintiff has not satisfied his burden to show that these high level executives have
unique or personal knowledge of the subject matter that warrants their information.
Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129, at *7 (W.D.
Mo. Mar. 28, 201 l)(citing the "apex deposition doctrine").
15. ESI Search Using Additional Search Terms
Plaintiff asks the Court to order Defendants to add five categories of search terms. Plaintiff
asks the Court to add (1) "executive training" and/or "leadership development training program",
(2) "PEP" and/or "program expenditure proposal" and/or "internal control", (3) "OCC," "office
of comptroller of currency," "FRB," "federal reserve board," and/or "consent order", (4)
"insufficient assurance", and (5) "whistleblower," "retaliate," "retaliation," "SOX," "Sarbanes
Oxley," and/or "Dodd Frank."
Defendants claim that the new categories of search terms are so common and generic that
they will return a significant volume of irrelevant documents that it is not sufficient to justify the
additional burden. Defendants maintain that using the search protocol for "Fred," "Lutzeier,"
"LOIS," "COSMOS," and "Champney" would produce all of the relevant documents.
Defendants claim that adding these additional search terms would produce an additional 555,909
documents and, therefore, the burden "greatly outweighs the likelihood that these searches will
yield additional documents not already captured by Defendants' search protocol." (ECF No. 87
at 23 (citing Fed.R.Civ.P. 26(b)(2)(c)(iii)).
The Court agrees that the majority of the search terms suggested by Plaintiff are too generic
and are likely to produce a large number of documents that are irrelevant to this case. Further,
the Court finds that the current search criteria adequately ensures that the proper documents that
are relevant to Plaintiffs causes of action are produced. The Court, therefore, denies Plaintiffs
request to additional search criteria, except for the phrase "consent order" because there appears
to be some confusion as to whether other consent orders exist that are relevant to this case. See
discussion regarding Request No. 20.
Plaintiff's Second Motion to Compel
Plaintiff complains that Defendants have produced in excess of 46,217 documents
without providing any indication as to which documents are responsive to which of Plaintiffs
fifty-eight (58) enumerated requests for production. 6 (ECF No. 94 at 1). Plaintiff describes this
as a "document dump" that fails to comply with Fed.R.Civ.P. 34(b). (ECF No. 94 at 2). Plaintiff
argues that Defendants have not produced documents to correspond with his document requests,
nor has Plaintiff produced documents as they were ordinarily kept in the usual course of
Defendants repeatedly state there are 115 requests, including subparts. See, e. g. , ECF No. 93 at
Defendants' business. (ECF No. 94 at 4). Plaintiff complains that this makes it difficult for him
to determine whether Defendants have responded to his requests. Plaintiff relies on Venture
Corp. Ltd. v. Barrett, No. 5:13-CV-03384-PSG, 2014 WL 5305575, at *3 (N.D. Cal. Oct. 16,
2014) for the proposition that Defendants must " (1) either organize and label each document it
has produced or it shall provide custodial and other organizational information along the lines
outlined above and (2) produce load files for its production containing searchable text and
metadata." See ECF No. 94 at 5.
Defendants do not dispute that they did not orgamze and label their production.
Defendants argue that the ESI agreement dictates the method of production. Defendants further
claim that, even if Rule 34(b)(2)(E) controls, Defendants have complied with its requirements.
(ECF No. 93 at 2). Defendants note that their document production is fully searchable, which
negates any need to organize the production.
Specifically, Defendants contend that their
production is "fully text-searchable and contain[s] metadata permitting Plaintiff to identify,
among other things, the custodians of the document, recipients, date, and other key information."
(ECF No. 93 at 1).
The Court finds that the method of Defendants' production complies with both the ESI
agreement and with Rule 34. Both parties rely on Venture Corp. Ltd. v. Barrett, and the Court
holds that Defendants have complied with the requirements outlined there.
Defendants represent that their production is fully searchable, including the custodian and
recipients of all emails. Thus, the Court finds that Defendants' production is in a reasonably
usable form or forms and/or the production is searchable, sortable and paired with relevant
metadata. Nat'! Jewish Health v. WebMD Health Servs. Grp., Inc., No. 12-CV-02834-WYDMJW, 2014 WL 2118585, at *6 (D. Colo. May 21 , 2014)("Rule 34(b)(2)(E)(ii) trumps specific
instructions in discovery requests such that ' even if native files are requested, it is sufficient to
produce memoranda, emails, and electronic records in PDF or TIFF format accompanied by a
load file containing searchable text and selected metadata ... because the production is in usable
form, e.g., electronically searchable and paired with essential metadata.'")(internal citation
omitted). Even though Defendants may not have produced the documents as kept in the normal
course of business or according to the custodian, the records are easily sorted according to these
fields and, therefore, their production is compliant with Rule 34. Therefore, Plaintiffs Second
Motion to Compel is denied.
Further, the parties each claim that the other has breached the ESI agreement through
their/his document production.
As previously discussed (ECF No. 105), this issue is not
currently before the Court. The Court, however, orders both parties to use their best efforts to
comply with the ESI agreement. If a party fails to produce documents that comply with the ESI
agreement, the other party must first give the producing party an opportunity to correct the
document production before seeking Court intervention.
IT IS HEREBY ORDERED that Plaintiffs Motion to Compel Discovery (ECF No. 79)
is DENIED, in part, and GRANTED, in part, in accordance with the discussion outlined above.
The Court orders Defendants to supplement their document production within twenty (20) days,
as outlined above, and to provide Plaintiff with a privilege log within sixty (60) days.
IT IS FURTHER ORDERED that Plaintiffs Second Motion to Compel Discovery
(ECF No. 88) is DENIED.
Dated this 2"d day of February, 2015 .
PNITED STATES DISTRICT JUDGE
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