Small et al v. University Medical Center of Southern Nevada

Filing 185

Special Master Daniel B. Garrie E-Discovery Summary and Order. Signed by E-Discovery Special Master Daniel Garrie, Esq. on 8/11/2014. (Copies have been distributed pursuant to the NEF - DKJ)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL SMALL, et al.,,

NO. 2:13-cv-00298-APG-PAL
Plaintiff,

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v.

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UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA
,
Defendants.

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SPECIAL MASTER DANIEL B.
GARRIE E-DISCOVERY SUMMARY
AND ORDER

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BACKGROUND AND PRIOR PROCEEDINGS

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Special Master Garrie was appointed on March 3, 2014. (Dkt. No. 149.) On March 10,

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2014, the parties, counsel for all parties, and ESI consultants for all parties, met with Special

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Master Daniel Garrie and United States Magistrate Judge Peggy Leen in chambers. (Dkt. No.

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151.) On March 18, 2014, Special Master Garrie memorialized his directives to the parties in a

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written order. (Dkt. No. 154.)

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Special Master Garrie conducted multiple hearings on the following dates: April 4, 2014;

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April 7, 2014; April 10, 2014; April 15, 2014; April 27, 2014; May 1, 2014; May 6, 2014; May

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20, 2014; June 3, 2014; June 16, 2014; June 26, 2014; July 3, 2014; July 19, 2014; July 25, 2014;

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July 28, 2014; August 4, 2014; and August 8, 2014, with counsel, the parties’ representatives,

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and consultants regarding UMC’s ESI collection and production issues, as well as UMC’s efforts
to comply with the ESI Protocol with respect to collecting, searching, and producing ESI from
databases. UMC’s paper production of responsive documents, and outstanding issues
surrounding UMC preservation, collection, and production of ESI from the newly discovered
timekeeping systems.
A. UMC Failed To Comply With The ESI Protocol As To The Production Of
Responsive ESI Contained In Databases.

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At the hearing on August 8, 2014, Counsel for UMC informed Special Master Garrie that

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Mr. Edmondson, UMC’s existing ESI Vendor, failed to comply with the handling of databases as

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set-forth in the Amended ESI Protocol (Dkt. 165) stipulated to by the Parties. See (8/08/14

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transcript), at 66-71 (discussing UMC’s failure to identify databases as required under the ESI

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Protocol). At this hearing, it was established that Mr. Edmondson had not processed, searched,

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and produced the database ESI. See (8/8/14 transcript), at 67.

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B. Hard Copy Document Production

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At the April 22, 2014 hearing, Special Master Garrie ordered UMC to construct a

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document index for the hard copy document review hearing. See (4/22/14 transcript), at 227.

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During the June 16, 2014 hearing, the Special Master Garrie heard positions of both parties on

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hard copy review and substantial conferring by the parties off the record transpired. As a result

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of this dialogue, the parties reached an agreement regarding in-person review of hard copy

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documents at UMC, document indices, and custodian declarations. See (6/16/14 transcript), at

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110:15-112:24; see id. at 106:23-107:5.

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Between April and July of 2014, UMC worked to comply with these orders. However, in
late July of 2014, UMC counsel's asserted that Plaintiffs' counsel's use of the word “production”
instead of “inspection” changed the protocol such that UMC was no longer required to comply
with the prior orders and agreement it had reached around the production of paper documents.
Instead UMC sought to produce departmental documents scanned on CDs, without indices, and
submit custodian declarations at later dates. See Exs. A, B (Plaintiffs’ and UMC’s Letter Briefs).

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C. Preservation, Collection, and Production of Responsive ESI from UMC
Timekeeping Systems1

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The TeleTracker system includes meal period data for Environmental Services and Transport
department employees and the CrimeStar system includes such data for public safety employees.
This data is “not captured in Kronos.” See Ex. C June 25, 2014 Counsel Witty Letter.

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At the July 28, 2014, August 4, 2014, and August 8, 2014 hearing, Special Master Garrie

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ordered UMC to provide declarations from individuals including: David Williams a System

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Administrator in UMC’s information technology (“IT”) department;2 Carmelito Mendoza, a

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Database Analyst in UMC’s IT department;3 John Rendall, Director of Environmental Services

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& Patient Transport; Jessica Monje, Manager, Service Response Center; Bill Pellegrino,
Director, Patient Placement, Tana Wisniewski, IT Support for GRASP, and Linda Williams,
Nursing Supervisor.4
Special Master Garrie determined that UMC’s IT department supports these timekeeping
systems by bifurcating support into application and database support. See (8/8/2014 transcript) at
14:8-21 (Mr. Mendoza testifying that he is the database owner but not the application owner for
the timekeeping systems within the IT department). It was also established that these additional
timekeeping systems were used by members of the opt-in Plaintiffs class, and that each of these

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systems can be used to track scheduled meal breaks, with the possible exception of GRASP). See

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Ex. C (June 25, 2014 Witty Letter). 5 It was also determined that all the timekeeping systems,

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except TeleTracking and possibly Clarity depending on how user time entries were captured,

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permitted users (including opt-in Plaintiffs) to overwrite the data entered. This made it necessary

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for UMC to have preserved a copy of the data in the timekeeping system to prevent possible loss

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Mr. Williams was identified as an individual knowledgeable about TeleTracking, Crimestar,
GRASP, and Clarity applications at UMC.
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Mr. Mendoza was identified by Counsel for UMC as the only individual with the most
knowledge concerning these systems from the database perspective.
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Mr. Williams identified John Rendall, Jessica Monje, and Bill Pellegrino as individuals at
UMC knowledgeable about the TeleTracker timekeeping system. See Ex. D August 7, 2014
declaration of David Williams at ¶4. Mr. Williams also identified Lorraine Noonan, Linda
Williams, and Tana Wisniewski as individuals knowledgeable about GRASP. Id. at ¶6.
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Testimony on this point was often inconsistent or contradictory. See e.g. Ex. E July 8, 2014
Williams Declaration at ¶ 4 (stating data was preserved); Ex. F August 7, 2014 Gurrola
Declaration at p.3 (stating there is no data retention policy for CrimeStar). At this stage, UMC’s
only option to demonstrate that responsive ESI was not destroyed from these three timekeeping
systems is to allow Special Master Garrie to conduct an on-site forensic analysis of each of the
systems and determine that responsive ESI was neither lost nor deleted.

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of ESI.6 See (8/4/14 transcript), at 125-127; Ex. G (8/7/2014 Linda Williams declaration), at ¶2

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(stating users could alter data in GRASP during a 24 hour period and that GRASP has a 6 month

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retention period); Ex. F (8/7/14 Gurrola declaration), at ¶¶ 4-5 (stating that managers and

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supervisors can make changes to Crimestar reports).7

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At the August 8, 2014 hearing, it was established by UMC’s counsel that there is no
individual at UMC with sufficient skill, knowledge, or expertise with any of the four timekeeping systems to ensure collection, search, and production of responsive ESI from these
systems. See (8/8/2014 transcript) at 44:1-4, 44:18-25, 45:1-2, 48:13-17 (UMC agrees to
identify individuals who can address issues with proprietary database systems).

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IT IS HEREBY ORDERED THAT UMC is to collect, search, and produce all
responsive ESI contained in all databases identified by Plaintiffs and UMC on or before August
11, 2014 pursuant to the ESI Protocol no later than August 29, 2014, and UMC is to retain a
vendor with appropriate skills and expertise to facilitate a timely and orderly production of this
ESI;
IT IS HEREBY FURTHER ORDERED THAT UMC is to provide scanned copies of

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departmental documents, along with accompanying indexes and custodian of records

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While Mendoza states that only he had the ability to delete data from timekeeping systems (and
that he did not delete data), he also states that it may be possible for users of TeleTracker,
Crimestar, and GRASP to remove data from these systems. See Ex. H August 1, 2014
declaration of Carmelito Mendoza at ¶4. He also states he does not know of any specific data
retention policies for the timekeeping databases Clarity, TeleTracker, Crimestar, and Grasp. Id.
at ¶5. It therefore at best unclear whether users could altered or removed timekeeping data.
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UMC witnesses have stated that the GRASP system does not contain responsive data, but were
unable to provide information from any witness with an IT function on this issue. See Ex. I
August 7, 2014 Declaration of Tana Wisniewski, IT Supervisor of Clinical Analysts, at ¶5
(stating that Linda Williams, a registered nurse, is the person with knowledge of data on the
GRASP system).

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declarations,8 prepare a document index for these documents as previously agreed and ordered

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by the Special Master (4/22/2014 transcript at 227; 6/16/14 transcript, at 110:15-112:24; see id.

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at 106:23-107:5), and UMC is to produce at least seven (7) departments per week starting the

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week of August 18, 2014 with the document index and the appropriate custodian declarations

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relating to the hard-copy documents; and

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IT IS HEREBY FURTHER ORDERED THAT UMC is to produce all responsive ESI
contained in the Clarity, GRASP, TeleTracker, and CrimeStar timekeeping systems no later than
September 3, 2014 in the following manner:

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On or before August 11, 2014 Plaintiffs shall review and identify additional database
files for processing.9
On or before August 11, 2014, UMC shall confirm that its new ESI vendor has seen
and understood the Amended ESI Protocol [Dkt. 165] in this matter.10
The parties shall coordinate a call on UMC proprietary database ESI for August 13,
2014 with all ESI vendors and the Special Master.11
On or before August 14, UMC is to identify individual(s) with sufficient skill and
expertise with each of the timekeeping systems at issue. After identifying the
individual(s), UMC is to provide the credentials to Plaintiffs.
On or before August 22, 2014, the individual(s) identified by UMC as an expert in the
respective timekeeping system, is to go onsite to UMC and ascertain the following for
the respective timekeeping system: How UMC uses the particular timekeeping
system; What data was captured in the timekeeping system (e.g., lunch breaks or start
time); How the database and application pieces for each of the timekeeping system
has been implemented at UMC; What reports and other output the particular
timekeeping system can provide; How each of these timekeeping systems are set-up
at UMC.
On or before August 29, 2014, UMC is to provide the Plaintiffs with a status update
regarding its production of timekeeping system ESI.

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All productions will be in compliance with the ESI Protocol.
The Parties discussed this deadline at the August 8, 2014 hearing. See (8/8/2014 transcript)
68:2-9.
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The Parties agreed to this deadline at the August 8, 2014 hearing. See (8/8/2014 transcript) at
35:16-25, 36:1-5, 66:21-23, 67:3-4.
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The Parties discussed and agreed to this deadline at the August 8, 2014 hearing. See (8/8/2014
transcript) at 58:2-14.
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On or before September 3, 2014, UMC is to produce all responsive ESI for each of
these time keeping systems to Plaintiffs in accordance with the ESI Protocol.
ADDITIONAL HEARINGS

A one-hour hearing is tentatively scheduled for August 15, 2014 at 14:00 PST to discuss

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any technical issues that may arise or require further clarification from the supplemental

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declarations of Mr. Mendoza, Mr. Schaibley, and Mr. Edmondson.

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SO ORDERED:

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________________________

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Daniel Garrie, Esq.

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Electronic Discovery Special Master

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DATED this 11th day of August, 2014.

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Exhibit A

Exhibit B

Exhibit C

6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
Telephone: [phone]
Fax: [phone]
www.lewisbrisbois.com

CAYLA WITTY

DIRECT DIAL: 702.693.4387

June 25, 2014

[e-mail]

File No.
32352.16

CONFIDENTIAL COMMUNICATION
VIA ELECTRONIC MAIL ONLY
Daniel Garrie, Esq.
Special Master
6506 Third Avenue, Suite C
Seattle, WA 98117
E-Mail: [e-mail]
Re:

Small v. UMC, Case No. 2:13-cv-298-APG-PAL
UMC Time-tracking Systems Oustide of Kronos and Clarity

Dear Special Master:
Please accept the following letter in accordance with your request at the June 16,
2014 hearing for additional information regarding UMC time-tracking systems.
TeleTracking
UMC uses TeleTracking v.3.0.1.4 in two departments. The Environmental Services
(EVS) department uses BedTracker (Sodexo ST), and the Transport department uses
ServiceTracker (Sodexo CMS/XT); both components are used to track assignments, tasks,
and locations for employees in these departments, including certain opt-in plaintiffs.
Because the employees in these departments do not maintain a central location during
shifts, they track their breaks (including meal periods) through the TeleTracking system.
Enclosed with this letter are the instructions provided to employees to explain how to use
the system. The employee calls in and enters a code to mark that the employee is on
break. When the break is completed, the employee calls in to enter a code to mark that the
employee is no longer on break. This data is not captured in Kronos, because these
departments only use Kronos for clocking in and out for the work day.
UMC is compiling the user manuals for these systems and will provide these
documents with a complete copy of the databases. UMC will also provide a list of the

ATLANTA • BEAUMONT • BOSTON • CHARLESTON • CHICAGO • DALLAS • DENVER • FORT LAUDERDALE • HOUSTON • LA QUINTA • LAFAYETTE • LAS VEGAS • LOS ANGELES • MADISON COUNTY
NEW ORLEANS • NEW YORK • NEWARK • ORANGE COUNTY • PHILADELPHIA • PHOENIX • SACRAMENTO • SAN BERNARDINO • SAN DIEGO • SAN FRANCISCO • SEATTLE • TAMPA • TEMECULA • TUCSON

Exhibit D

Exhibit A

Exhibit B

Name / LogonID

Stephanie Merrill / hrsteph

John Espinoza / jespinoza

Doug Spring / hrdspring

Mary Sinclair / hrmary

Jackie Panzeri

Start Date

End Date

Last Access

John has an ID, but I could not locate any resources under his
resource ID or logon ID

None

None

Doug has an ID, but I could not locate any resources under his
resource ID or logon ID

2/4/2013

N/A

None

10/3/2011

N/A

N/A

Comments
There is no time logged for Stephanie Merrill. It appears to me
that Mike Oliveri or Sean Grauer filled in and approved her
timesheets.
From 7/30/2012 until present, the timesheets were not even
submitted for approval.

N/A

7/29/2013

I could locate no resources or an ID belonging to Jackie Panzeri in
Clarity

6/23/2014

None

7/5/2010

N/A

Mary had a few timesheets utilized, but they only showed a few
hours on each time sheet. Most were not even opened or filled
out or approved.

N/A

Search was done for ALL resources attached to the person from 1/1/2006 to 8/5/2014
Name - Employee Name
LogonID - Employee logon ID and Resource ID in Clarity
Start Date - Date of first timesheet found
End Date - Date of last timesheet found
Last Access - Date of last access into Clarity
Comments - as stated

Exhibit C

Exhibit E

Exhibit F

ROBERT W. FREEMAN

1 Nevada Bar No. 3062

MARGARET G. FOLEY

2 Nevada Bar No. 7703

CAYLA WITTY

3 Nevada Bar No. 12897

LEWIS BRISBOIS BISGAARD & SMITH LLP

4 6385 S. Rainbow Boulevard, Suite 600

Las Vegas, Nevada 89118

5 702.893.3383

FAX: [phone]

6 Attorneys for Defendant University
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Medical Center of Southern Nevada

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
DANIEL SMALL, CAROLYN

12 SMALL. WILLIAM CURTIN, DAVID

CASE NO. 2-13-cv-0298-APG - PAL

COHEN, LANETTE LAWRENCE, and

13 LOUISE COLLARD, Individually, and

on Behalf of All Other Persons

14 Similarly Situated,

Plaintiff,

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vs.

DECLARATION OF
RUBEN GURROLA
REGARDING CRIMESTAR
QUESTIONS FROM SPECIAL
MASTER GARRIE

17 UNIVERSITY MEDICAL CENTER
18

OF SOUTHERN NEVADA;
Defendant.

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I, RUBEN GURROLA, hereby declare as follows:

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1.

The facts set forth herein are of my own personal knowledge and if

23 sworn I could and would testify competently thereto.
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2.

I work at UMC as Director of Public Safety. I was asked to answer the

25 questions listed below with regards to the CrimeStar application in use at UMC to
26 the best of my ability. I spoke with __John Foster_______________________ to
27 assist me with answering these questions.

LEWIS

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

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4822-2940-9819.1

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What is the retention schedule for the CrimeStar timekeeping systems?

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There is no known retention schedule

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How far back does the data go for the CrimeStar timekeeping systems?

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The CrimeStar timekeeping system goes back to May of 2003.

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Can users delete data from the CrimeStar timekeeping

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systems? And, if so, which systems? Who is able to delete data

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from the systems? Once deleted, is the data gone permanently?

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Data can only be deleted by System Administrators Ruben Gurrola

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and John Foster. Yes, it is gone permanently.

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Did UMC at any point during the time period at issue migrate

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or upgrade the CrimeStar timekeeping systems? If yes, please

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include a statement that details when UMC performed the migration

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and what data they migrated and how it was migrated.

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I do not have knowledge of the system ever being upgraded.

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CrimeStar data is entered by a dispatcher in our control center;

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Kronos is based on the employee clocking in and out for lunch. The

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systems are separate Kronos and CrimeStar are not related in

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ATTORNEYS AT LAW

CrimeStar timekeeping system that is not captured in Kronos.

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BISGAARD
& SMITH LLP

statement that identifies the additional data that is captured in the

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BRISBOIS

systems differ from data captured in Kronos? Please provide a

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LEWIS

How does the data entered by the users in the CrimeStar

anyway.

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4822-2940-9819.1

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Is information on the duration of meal breaks available in the

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CrimeStar system? If this data is not available, what relevant data is

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captured by the system?

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Yes, start time and end time.

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For the CrimeStar timekeeping systems, how long is the data

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kept that is entered by the users? Include the data retention policies

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for each of these systems.

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No data retention policy for this system. No known limit on how

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long data is kept.

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I hereby declare under penalty of perjury under the laws of the State of

17 Nevada that the foregoing statements are true and correct to the best of my
18 knowledge and that this declaration was executed on August 7, 2014, in Las Vegas,
19 Nevada.
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______________________________________

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RUBEN GURROLA

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LEWIS

BRISBOIS

BISGAARD
& SMITH LLP
ATTORNEYS AT LAW

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4822-2940-9819.1

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Exhibit G

Exhibit H

Exhibit I