Kinnamon v. Ditech Financial, LLC

Filing 58

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion to Compel Discovery [ 23 ] is GRANTED in part and DENIED in part in accordance with the parties agreements and the Courts rulings herein.IT IS FURTHER ORDERED that Defendants Cross-Motion for a Protective Order [ 31 ] and Plaintiffs Motion for Protective Order [ 47 ] are DENIED as moot. Signed by District Judge John A. Ross on 12/16/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTINA KINNAMON, individually
and on behalf of all others similarly situated,
Plaintiff,
v.
DITECH FINANCIAL, LLC,
Defendant.

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No. 4:16-CV-00646 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Discovery (Doc. No.
23), Defendant’s Cross-Motion for Protective Order (Doc. No. 31), and Plaintiff’s Motion for
Protective Order (Doc. No. 47). The motions are fully briefed and oral argument was held on
November 9, 2016. At the conclusion of the argument, the Court directed the parties to meet and
confer on the pending discovery matters and report to the Court regarding any remaining issues
by November 16, 2016 (Doc. No. 51); the Court subsequently extended the reporting deadline to
November 23, 2016 (Doc. No. 53). On November 23, 2016, the parties reported that they had
reached complete or tentative agreements on many of the outstanding discovery matters (Doc.
No. 54) and requested a two-week extension to continue their discussions, which the Court
granted on November 28, 2016 (Doc. No. 55). The Court is now in receipt of the parties’ Second
Joint Status Report, filed December 12, 2016, wherein the parties advise that one discovery issue
remains, namely, the parameters for search terms applicable to a sample of the class data sought
by Plaintiff in her motion to compel (Doc. No. 56). The Court understands that the parties have
agreed to work with a four month sample of class data as the initial step in the discovery process

(see Doc. No. 56 at 2, 4).
Plaintiff argues that Ditech is either unwilling or unable to conduct an appropriate query
of the sample data for notations indicating wrong numbers and do not call requests. Ditech
responds that it does not use any standardized terms to make notations of wrong numbers and do
not call requests, but remains willing and able to collaborate with Plaintiff on a list of search
terms. Rather than proposing any search terms, Plaintiff has requested Ditech conduct a word
frequency query of the comment fields of its customer account databases to generate a report of
the most commonly used words. This, Plaintiff argues, would allow her and her database expert
to focus on the terminology actually used to come up with useful search terms. Ditech responds
that it lacks the technology or resources to create a “word frequency” report. According to
Ditech, the process of creating such a report would involve writing a software program to
analyze every unique combination of letters, numbers or symbols occurring in the comments
field and the total number of occurrences for each such combination, re-directing employees
from daily operations to oversee and perform the task, and possibly hiring a contractor to assist
the team. In further response, Ditech argues that Plaintiff’s request violates the Sedona
Principles1 governing database discovery, which provide that before electronic information may
be ordered produced, it must be “reasonably available to the responding party in the ordinary
course of business.”
It appears based on the parties’ filings that there are search terms that can be utilized for
Plaintiff to obtain necessary information, such as “DNC,” “wrong number,” “stop,” etc. In order
to move the parties forward with their agreed sampling process, the Court will direct Plaintiff to

1

See The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for
Addressing Electronic Document Production (2d ed. 2007), http://www.thesedonaconference.org (last
visited Dec. 16, 2016).

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submit a list of proposed search terms for Ditech to search its databases and provide information
to Plaintiff. If the resulting information is inadequate, and Plaintiff can show good cause for
further search efforts, then the Court will reconsider its ruling. At this point, however, the Court
will not require Ditech to take extraordinary measures to create and produce a “word frequency”
report or to allow Plaintiff’s expert to access Ditech’s database to query the data himself.
Plaintiff’s motion to compel will, therefore, be granted in part and denied in part.
Based on the parties’ representation that they have reached agreement on the other
pending discovery matters, Ditech’s cross-motion for protective order and Plaintiff’s motion for
protective order will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Discovery [23] is
GRANTED in part and DENIED in part in accordance with the parties’ agreements and the
Court’s rulings herein.
IT IS FURTHER ORDERED that Defendant’s Cross-Motion for a Protective Order
[31] and Plaintiff’s Motion for Protective Order [47] are DENIED as moot.

Dated this 16th day of December, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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