Brown v. West Corporation
MEMORANDUM AND ORDER - Plaintiff's motion for sanctions is denied. Plaintiff's objections to the Magistrate Judge's order are overruled. Plaintiff's request for court ordered mediation is denied. Plaintiff's request for an "Order of Cooperation" is denied. Plaintiff's request for a hearing is denied as moot. Ordered by Senior Judge Lyle E. Strom. (AOA)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
WEST CORPORATION, a Delaware )
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Motion
for Sanctions (Filing No. 126) and Objection to Magistrate
Judge’s Order (Filing No. 132).
On November 5, 2012, this Court issued an order (Filing
No. 85) on plaintiff’s motion to compel (Filing No. 34).
the issues addressed in that order was the sufficiency of West’s
search for Electronically Stored Information.
The Court held
that the litigation hold memo directing its employees to search
for relevant materials was itself privileged but that much of the
information surrounding the memo was not.
Concerned that it
could not make a determination of whether plaintiff’s motion to
compel was valid on the information available at that time, the
Court ordered the defendant to provide plaintiff with many
specific pieces of information about the searches defendant had
The purpose of this disclosure was to lay bare the
defendant’s search process and expose any deficiencies that might
be a basis for plaintiff’s motion to compel a more stringent
search of potentially relevant ESI for preservation.
21, 2012, defendant sent a letter to plaintiff’s counsel
detailing the search process it undertook in an effort to respond
to plaintiff’s production request and explaining that West’s
system does not allow for a “global search” of all electronic
information in West’s possession.
The parties later submitted a joint proposal for
resolution of production disputes to Magistrate Judge Thalken.
That submission specifically excluded disputes over compliance
with this Court’s November 5, 2012, order -- reserving for this
Court all rulings regarding its prior order.
The plaintiff now
seeks sanctions per Federal Rule 37(b), alleging defendant has
failed to comply with the November 5, 2012, order.
plaintiff seeks to overturn the Magistrate Judge’s order limiting
A. Legal Standard
Rule 37(b) provides a number of discretionary sanctions
for failing to comply with a court’s order compelling discovery.
Fed. R. Civ. P. 37(b).
Rule 37(b) also provides for attorney’s
fees and other reasonable expenses for a “disobedient party.”
Finally, the Court has an inherent power to impose sanctions
for “willful disobedience of a court order” or “when a party has
‘acted in bad faith, vexatiously, wantonly or for oppressive
Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)
(quoting Alyeska Pipeline Serv. Co. v. Wilderness Society, 421
U.S. 240, 258-259 (1975)).
An adverse jury instruction, like the one requested by
plaintiff, predicated on spoilation of evidence is only
appropriate where the Court finds “intentional destruction
indicating a desire to suppress the truth [and] prejudice to the
Hallmark Cards, Inc. v. Murley, 703 F.3d 456,
460 (8th Cir. 2013).
The Court’s November 5, 2012, order recognized that
plaintiff’s Request No. 13 covered potentially relevant
However, the Court did not grant plaintiff’s motion
Rather, the Court noted that “information relevant to
the scope and depth of the preservation or the search must be
disclosed in detail so that precise objections can be made and so
that defendant’s search can be effectively reviewed by this
Brown v. W. Corp., 287 F.R.D. 494, 499-500 (D. Neb.
While it is true that defendant has not explicitly
touched on each item in the Court’s November 5, 2012, order,
defendant’s responses have addressed the substance of the Court’s
concerns by explaining the process by which West employees were
directed to identify, preserve, and search potentially relevant
Implicit in the order was that the defendant should
produce any information touching on each enumerated category if
For instance, to the extent that plaintiff complains
that defendant failed to “elaborate on general categories of
documents,” he fails to recognize that defendant’s letter
indicated a communication to potential holders of ESI that they
keep “any document, in any form, regardless of where it is
stored, that may be related in some way to the allegations in the
complaint or Mr. Brown and his employment at West.”
has complied with the Court’s order to supply information about
their document retention practices.
Plaintiff misapprehends the meaning of the order when
he suggests defendant has failed to comply because it has not
informed plaintiff of which sources were searched in response to
his specific discovery requests.
The order was aimed at
identifying sources searched for potentially relevant information
at the preservation stage, not at identifying the sources for
later searches of preserved documents that occurred in response
to specific discovery requests.
Plaintiff agreed to submit
further search disputes of the preserved information to the
The November 5, 2012, order directed the
defendant to provide sufficient evidence to overcome some
concerns the Court had regarding its preservation and search
The defendant’s responses allayed those concerns.
The order did not place an ongoing burden on the plaintiff to
unequivocally establish the propriety of its searches.
further evidence from the plaintiff identifying specific
materials that he believes are being withheld or that remain
unproduced due to a flaw in defendant’s search, the Court finds
no reason to require more from the defendant by way of evidence
of a proper search.
Plaintiff also argues two spoilation issues.
that defendant failed to preserve information by allowing the
automatic deletion of e-mails from West’s servers, and second, by
erasing data from the computers of three proposed custodians when
they left West.
Plaintiff’s concern over defendant’s failure to turn
off the “auto-delete” functionality as part of its preservation
efforts regarding e-mails on West’s server appears to refer to email backups that are kept on West’s server for two weeks after
Since this case was filed more than a year after
plaintiff’s separation from West, no e-mails from the plaintiff’s
time at West existed in this two-week backup system.
did not affect any e-mails on the computers of the individual
West employees who sent or received them.
The plaintiff does not
appear to dispute that any e-mails remaining on the employees’
computers were covered in defendant’s preservation efforts.
Plaintiff also argues that the deletion of back-up e-mails
transmitted while the litigation was in process is problematic.
Neither the Federal Rules nor the case cited by plaintiff1
mandates that back-up copies of materials be preserved.
Defendant has directed employees to save all relevant documents,
Plaintiff has failed to identify any relevant
e-mails or category of e-mails that are not subject to
defendant’s preservation process or that have been deliberately
destroyed in an attempt to thwart discovery.
Plaintiff also takes issue with the destruction of
files on three West computers that were used by employees that
are no longer employed by West.
Defendant contends that these
computers contained no relevant information that had not already
Given that the defendant appears to have acted in
good faith by repurposing computers of former employees as a
Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y.
regular business practice only after making a determination that
all of the relevant information stored on those computers was
preserved, the Court does not find an intent to suppress the
Plaintiff has failed to show non-compliance with this
Court’s November 5, 2012, order or deliberate spoilation.
Therefore, his motion for sanctions will be denied.
III. Magistrate Judge’s Order
Plaintiff contends that the Magistrate Judge erred in
failing to compel production of certain Electronically Stored
A. Standard of Review
Where a magistrate judge rules on a non-dispositive
issue, a district court reviewing that order must “modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.”
Fed. R. Civ. P. 72(a).
“A finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
v. C.I.R., 79 F.3d 726, 728 (8th Cir. 1996) (quoting Chase v.
Commissioner, 926 F.2d 737, 740 (8th Cir. 1991).
contrary to law standard, a district court can reverse a
magistrate judge's order only if the order fails to apply the
Brooks v. Lincoln Nat'l Life Ins. Co., 8:05CV118,
2006 WL 2487937 (D. Neb. Aug. 25, 2006) (citing Olais Castro v.
United States, 416 F.2d 1155, 1158 n.8 (9th Cir. 1969).
B. Relevant Law
Under the Federal Rules of Civil Procedure, the
plaintiff is generally entitled to “nonprivileged matter that is
relevant to any party’s claim or defense.”
Fed. R. Civ. P.
Generally, the Court must limit the extent of
discovery under Rule 26(b)(2)© where the burden or expense of
production outweighs the likely benefit.
The rules place an additional limit on
discovery of ESI where the non-moving party shows the sources are
not “reasonably accessible.”
Id. at 26(b)(2)(B).
Plaintiff contends that “once a valid discovery request
exists, it is Defendant’s burden to prove that it has properly
responded to said request.”
In addition, plaintiff contends that
“Judge Thalken found Plaintiff’s Request for Production was a
valid discovery request.”
Thus, plaintiff argues that the
Magistrate Judge erred by placing any burden on the plaintiff to
justify additional custodians as part of further searches.
Though courts have on occasion ordered the responding
party to provide evidence of a proper search where there was
reason to question whether a proper search was conducted, the
Court finds questionable the contention that the law places an
independent burden on the responding party to provide such
evidence in the regular course of discovery.
propriety of the search was not the subject of the Magistrate
Judge’s order -- that was precisely the subject of this Court’s
November 5, 2012, order and section I above.
Rather, the Magistrate Judge’s order found that
plaintiff’s discovery requests were sufficient to trigger a
response from the defendant including the production of “relevant
unprivileged responsive ESI.”
Brown v. W. Corp., 8:11CV284, 2013
WL 4456556, *7 (D. Neb. Aug. 16, 2013).
The analysis conducted
by the Magistrate Judge regarding expanding the search to include
additional custodians appropriately explored whether the requests
should be limited due to the factors set out in the Federal
relevance and the balance between likely benefit and the
burden on the producing party.
Fed. R. Civ. P. 26(b).
reviewed the Magistrate Judge’s findings and the underlying
materials submitted by the parties, this Court does not find
clear error or inappropriate application of the law.
contrary, the Magistrate Judge reviewed the available evidence,
applied the appropriate Federal Rules, found that there was no
evidence to suggest sufficient benefit to warrant the expansive
scope of the requested discovery, and tailored the discovery to
conform to the standards set out in the rules.
In addition, the
Magistrate Judge recognized that some of the custodians may have
relevant, discoverable information but noted that, given the type
of information plaintiff seeks, a few pointed questions in a
deposition were less burdensome than grasping at the periphery by
reviewing thousands or tens of thousands of e-mails in the hope
of discovering a limited number of interactions that might,
together, indicate something about whether discrimination played
a role in the actions at the center of this case.
To the extent that the Magistrate Judge placed a burden
on the plaintiff to make a threshold showing of relevance or a
showing that the requested discovery was likely to uncover
relevant admissible materials, the Magistrate Judge was well
within the law.
See, Hofer v. Mack Trucks, Inc., 981 F.2d 377,
380 (8th Cir. 1992) (“Some threshold showing of relevance must be
made before parties are required to open wide the doors of
discovery and to produce a variety of information which does not
reasonably bear upon the issues in the case.”).
Judge’s finding that plaintiff failed to make that showing was
not clearly erroneous.
Finally, having determined that much of
the requested discovery was irrelevant, no additional analysis
was necessary regarding whether the “readily accessible” standard
for ESI required additional limitations.
Magistrate Judge’s decision not to apply the “readily accessible”
standard was not a failure to apply the relevant law.
II. Search Terms
As with the custodians, plaintiff asserts that the
Magistrate Judge inappropriately placed the burden on him rather
than defendant to put forward search terms that would capture
relevant, discoverable ESI.
Magistrate Judge’s order.
Again, plaintiff misapprehends the
Defendant has already produced
extensive discovery materials.
The issue before the Magistrate
Judge was whether additional production was appropriate.
support of his motion to compel production of additional
materials, plaintiff suggested search terms that he believed
should have been included as part of defendant’s search of the
Again, the Magistrate Judge’s analysis addressed
not the propriety of the defendant’s search protocol -- a subject
reserved by both parties for this Court -- but the relevance of
the materials expected to be produced by the expanded search and
the burden of that search as weighed against the likely benefit.
The Magistrate Judge applied the appropriate discovery rules to
the disputed issue.
The Magistrate Judge denied use of some of
plaintiff’s additional terms because he was unpersuaded that
these “terms have any connection to the facts of the plaintiff’s
lawsuit such that a search using those terms would reveal
As with the custodians, the Magistrate
Judge’s finding that plaintiff failed to make a threshold showing
of relevance was not clearly erroneous.2
IT IS ORDERED:
1) Plaintiff’s motion for sanctions is denied.
2) Plaintiff’s objections to the Magistrate Judge’s
order are overruled.
3) Plaintiff’s request for court ordered mediation is
4) Plaintiff’s request for an “Order of Cooperation” is
5) Plaintiff’s request for a hearing is denied as moot.
DATED this 4th day of December, 2013.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
Plaintiff also notes that the Magistrate Judge did not
specifically address the terms “Rex” or “Rex Brown.” The term
“Rex Brown” has already been used in searching the ESI of the
remaining custodian John Thielen. Therefore, no further analysis
or ruling on these terms is necessary.
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