SUGG v. VIRTUSA et al

Filing 44

MEMORANDUM OPINION AND ORDER that Plaintiff's requests as to the discovery issues presented to the Court in the 9/08/2020 joint submission are denied. Signed by Magistrate Judge Douglas E. Arpert on 11/10/2020. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEO SUGG, individually
and on behalf of others similarly situated.

Plaintiffs,
v.
VIRTUSA, et al.
Defendants.

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: Civil Action No. 18-8036 (MAS)(DEA)
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: MEMORANDUM OPINION & ORDER
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Prior to the submission of the current dispute (which is set out in detail in the parties’
joint submission to the Court dated September 8, 2020), counsel negotiated and agreed on the
scope of Defendant’s search and collection efforts including the custodians subject to the search,
the search terms to be used, and the document requests subject to the search. Specifically, the
parties agreed to conduct ESI searches from 32 custodians using Boolean search terms for
documents responsive to 15 of Plaintiff’s document requests and four of his interrogatories.
Despite their efforts, the parties have reached an impasse as to whether two additional custodians
should be included in the ESI search and whether documents responsive to two more of
Plaintiff’s document requests, a portion of a third request, and two additional interrogatories
should be produced by Defendant.
I. LEGAL STANDARD
Pursuant to Federal Rule 26, “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). “It is well established that the scope of discovery in federal litigation is

broad.” Fed R. Civ. P. 26(b)(1).” Baier v. Princeton Office Park, L.P., No. 08-5296, 2018 U.S.
Dist. LEXIS 180612, at *5 (D.N.J. Oct. 22, 2018). This may be particularly true in class actions
where “‘[m]utual knowledge of all the relevant facts gathered by both parties is essential to
proper litigation’” and “‘[the] parties will benefit from broad discovery, as the court, when ruling
on class certification, will have the necessary data before it to determine if the requirements of
Fed. R. Civ. P. 23(a) are met.’” Barton v. RCI, LLC, No. 10-3657, 2013 U.S. Dist. LEXIS 46590,
at *8 (D.N.J. Mar. 28, 2013) (citations omitted). However, discovery is not without limit.
As the threshold, the discovery sought must be relevant. The burden is on the party
seeking discovery to “show that the information sought is relevant to the subject matter of the
action and may lead to admissible evidence.” In re EthiCare Advisors, Inc., No. 20-1886, 2020
WL 4670914, at *3 (D.N.J. Aug. 12, 2020). In addition, the discovery sought must be
proportional to the needs of the case considering the factors set forth in Fed. R. Civ. P. 26(b)(1).”
Virtusa has already produced a volume of documents and data and based on the parties’
current plan, has agreed to produce more. Defendant maintains that Plaintiff’s additional
discovery requests exceed the needs of the case and are not “proportional”. The concept of
proportionality was added to Rule 26 “to deal with the problem of over-discovery. The objective
is to guard against redundant or disproportionate discovery . . . .” Fed.R.Civ.P. 26, Advisory
Committee’s notes.
II. ANALYSIS
1. Plaintiff’s request to compel Kris Canekeratne and Samir Dhir to be included as
custodians in Virtusa’s ESI search
To date, Virtusa has produced over 5,000 pages of documents, including emails and
numerous reports and Excel files with data responsive to Plaintiff’s interrogatories and document

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requests. In so doing, Virtusa agreed to include most of the custodians (i.e., 32) proposed by
Plaintiff. Virtusa also agreed to essentially all of the search terms proposed by Plaintiff resulting
in approximately 1,200 searches per custodian.
The 32 custodians presently included in the ESI searches include several high-ranking
executives in the company, as well as the heads of several relevant business groups (e.g.
immigration, talent acquisition, and staffing) and Plaintiff’s direct supervisor. In addition,
Plaintiff seeks to include two of Virtusa’s most senior executives, CEO Kris Canekeratne and
President Samir Dhir.
Defendant maintains that including Canekeratne and Dhir would be duplicative of the
custodians it has already agreed to produce and, further, that they do not possess any unique
documents that would not otherwise be discovered in the agreed upon ESI search. The
individuals Virtusa has already agreed to include as custodians are the top employees in each of
the departments with the most relevant knowledge about hiring, staffing, promotions,
immigration and diversity issues.
Virtusa has also agreed to include many of their direct reports and subordinates. As a
result, Plaintiff will have access to the most relevant custodians and the custodians with the most
relevant emails on the topics at issue in this lawsuit. Adding Canekeratne and Dhir as custodians
is duplicative because if either individual were communicating about staffing, hiring, visas,
immigration, or diversity, etc., they would be communicating with one of the 32 individuals who
are already subject to the ESI searches.
Virtusa is not objecting to producing the emails of either Canekeratne or Dhir if they
uncovered through the searches of the agreed upon custodians. Thus, Plaintiff is not being denied

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access to their emails. Plaintiff has not demonstrated that either Canekeratne or Dhir has any
unique knowledge beyond whatever the global heads and top executives may possess.
Plaintiff’s argument that either Canekeratne or Dhir may have discussed Plaintiff in an
email in which none of the other 32 custodians are copied, and that email is responsive to one of
the document requests at issue is unpersuasive. Plaintiff’s other relevancy arguments are also
unavailing because Virtusa has already agreed to produce the emails of 32 of the most relevant
custodians. Accordingly, Plaintiff’s request to compel Defendant to include Canekeratne and
Dhir as additional custodians is denied.
2. Plaintiff’s request to compel ESI responsive to the additional document requests and
interrogatories
In accordance with the parties’ agreement, Virtusa will produce ESI responsive to 15 of
Plaintiff’s document requests as well as ESI related to four of Plaintiff’s Interrogatories. Virtusa
has objected to two document requests, a portion of a third document request, and two
interrogatories, all of which seek documents or information which Defendant maintains is
irrelevant, overbroad, or unduly burdensome.
i. Plaintiff’s First Request for Production No. 8
Plaintiff’s First Request for Production No. 8 seeks “[d]ocuments and ESI relating to
complaints or grievances lodged by, or communications by, applicants and/or current or former
employees of Virtusa in the U.S. concerning race or national origin discrimination, including the
complaints, grievances, or communications themselves, as well as any materials created during
any subsequent internal investigation stemming therefrom, and any materials filed in any
subsequent agency action, litigation, arbitration, or mediation.”

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Although Virtusa objected to this request, it responded that there have been no
complaints alleging race or national origin discrimination filed with Virtusa’s Human Resources
department, or any lawsuits or EEOC charges filed against Virtusa, from January 1, 2014
through the present. Nonetheless, Plaintiff seeks an ESI search of the 32 custodians in an effort
to discover whether any applicant or employee may have made a complaint of discrimination
which was not forwarded to Human Resources.
According to Defendant, its employees can make complaints of discrimination directly to
Human Resources or, if any such complaints are made to managers or recruiters, they must be
forwarded to HR for investigation. Virtusa has already searched for documents responsive to
Plaintiff’s request and determined that there have been no complaints made directly to HR
brought to HR’s attention by others alleging race or national origin discrimination against
Virtusa.
Plaintiff believes, however, that there may be other complaints of race discrimination that
were not sent to HR. Plaintiff suggests that the fact there have been no complaints of
discrimination reported to Virtusa justifies conducting ESI searches on this topic. Defendant
asserts that the fact that no employee has complained of race discrimination to HR, or that no
recruiters or managers reported internal complaints to HR, is not sufficient basis to engage in
additional discovery on this subject. Rather, Defendant contends, because there have been no
internal complaints of race discrimination, the parties should not have to engage in additional
ESI searches of all 32 custodians on the speculative chance that some unreported claim of
discrimination exists. The Court agrees and Plaintiff’s request is denied.
ii. Plaintiff’s Third Request for Production No. 6
Plaintiff’s Third Request for Production No. 6 seeks, “[f]or employees located in the U.S.

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between 2014 and the present, produce all performance reviews, performance improvement
plans, appraisal scores, and any objections or complaints by employees regarding performance,
performance improvement plans, appraisal scores, promotions, or terminations.” Defendant
objects to this Request on the grounds that it seeks documents which are not relevant to
Plaintiff’s individual or class claims, is not proportional to the needs of the case, and is
overbroad and unduly burdensome. Defendant further objects to this request as premature
because class certification has not been granted.
After Plaintiff agreed to limit the scope of this request to the production of “appraisal
scores and all performance reviews”, Virtusa agreed to produce the performance appraisal data
showing each U.S. employee’s performance score (i.e., meets expectations, exceeds
expectations, partially meets expectations, etc.) for each year during the class period. On
December 2, 2019 Virtusa produced over 25,000 ratings showing the overall performance ratings
for all employees who worked in the United States for 2014 through 2019. Virtusa also provided
the HR data necessary to match the performance ratings of these employees to promotions,
terminations, and other job actions. Thereafter, Plaintiff sought additional performance review
data to which Defendant objected, arguing that additional ESI relating to performance
evaluations and performance improvement plans is irrelevant in light of the fact that Virtusa has
produced the ratings for each employee.
Plaintiff later raised this issue with the Court and in response Defendant argued, among
other things, that the additional performance review documents sought by Plaintiff are irrelevant
to class discovery. During a conference with counsel on March 30, 2020, the Court determined
that Plaintiff is not entitled to the additional performance data. ESI relating to individual

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performance evaluation details, performance improvement plans, and complaints relating to
performance are irrelevant to Plaintiff’s anticipated motion for class certification.

One of the required elements under Fed. R. Civ. P. 23 is a “common contention …
capable of class-wide resolution – which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 341 (2011). Plaintiff does not offer any persuasive reason
why he needs additional ESI relating to the individual performance evaluations when Defendant
has already produced the performance ratings. Information about individual employees’ goals
and their managers’ evaluations is the sort of individualized assessment that is inappropriate for
class discovery.
Accordingly for the same reasons previously stated, Plaintiff’s request for additional ESI
relating to “performance reviews, performance improvement plans, appraisal scores, and any
objections or complaints by employees regarding performance, performance improvement plans,
appraisal scores, promotions, or terminations” is denied.
iii. Plaintiff’s Third Request for Production No. 4
Plaintiff’s Third Request for Production No. 4 seeks, “documents and ESI relating to the
staffing of positions in the United States, including but not limited to any instructions or
guidance concerning staffing an actual or prospective customer project with a non-visadependent or a visa dependent Virtusa employee, the securing of visas to staff customer projects,
the availability of visa-dependent Virtusa employees overseas, on the bench, or on another
project, the availability of non-visa-dependent Virtusa employees on the bench or on another
project, or the displacement and/or outsourcing of the customer’s workforce to Virtusa

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(including, e.g., the performance of any knowledge transfer from the customer’s workforce to
Virtusa’s workforce).”

Virtusa has agreed to conduct ESI searches relating to this request except for,
“Documents and ESI relating to . . . the displacement and/or outsourcing of the customer’s
workforce to Virtusa (including, e.g., the performance of any knowledge transfer from the
customer’s workforce to Virtusa’s workforce).” Virtusa’s objection is based on Plaintiff’s
clarification of the phrase “the displacement and/or outsourcing of the customer’s workforce to
Virtusa (including, e.g., the performance of any knowledge transfer from the customer’s
workforce to Virtusa’s workforce),” to mean, “documents reflecting the replacement of a
Virtusa’s client’s own workforce with Virtusa employees, and the displaced workers’ training of
Virtusa’s employees (i.e., a knowledge transfer).”
Defendant maintains that information sought is irrelevant to Plaintiff’s individual and
class claims in this case. While Plaintiff alleges that Virtusa discriminates against its non-South
Asian employees, this request seeks to uncover information related to alleged discrimination
against employees of Virtusa’s clients not Virtusa employees. While Plaintiff claims this portion
of the request is relevant to show that “Virtusa chooses to staff U.S. positions with less
knowledgeable South Asians”, whether Virtusa’s clients may have engaged in discrimination
against their employees is not relevant to Plaintiff’s claims against Virtusa.
Defendant has agreed to search for documents responsive to Plaintiff’s other Requests for
Production including:
• Documents and ESI relating to instructions or guidance concerning staffing an
actual or prospective customer project with a non-visa-dependent or a visa-dependent

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Virtusa employee, the securing of visas to staff customer projects, the availability of visadependent Virtusa employees overseas, on the bench, or on another project, the availability of
non-visa-dependent Virtusa employees on the bench or on another project;
• Documents and ESI reflecting all policies and procedures for . . . . any department
involved in allocating staff (both local hires and visa workers) for U.S. positions;
• Documents sufficient to show the names of all staffing agencies who have submitted
Potential Hires to Virtusa, and the names of the Virtusa employees to whom the Potential Hires
were submitted; and
• Documents and ESI relating to all instructions, policies, procedures, directives,
mandates, or preferences concerning . . . staffing/allocation . . . job placement of individuals with
visas, promotions.
In addition, Defendant has agreed to search for and produce ESI relating to regularly
created business reports that relate to staffing. Thus, the information sought by this Request is
simply duplicative and unnecessary.
Finally, Plaintiff’s claim that this information may identify “putative class members”
because these particular individuals may have applied to jobs with Virtusa is unpersuasive
inasmuch as Virtusa already produced the applicant data necessary to identify putative class
members. Accordingly, Plaintiff’s request is denied.
iv. Plaintiff’s Third Set of Interrogatories No. 1
Plaintiff also seeks ESI relating to the Third Set of Interrogatories No. 1, which requires
Virtusa to “[i]dentify by name, location, and content, each computer system, electronic database,
and paper filing system used by Virtusa related to hiring for U.S. positions, employee allocation
or unallocation (i.e., benching) for U.S. positions, U.S. visa applications, budgeting and tracking,

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employee performance reviews for employees located in the U.S., promotions for employees
located in the U.S., compensation for employees located in the U.S., or the termination of
employees located in the U.S.”
Virtusa maintains that it has already provided a detailed answer to this Interrogatory.
However, if Plaintiff is also seeking ESI relating to Virtusa’s computer systems, Virtusa
contends the information sought is irrelevant to Plaintiff’s individual or class claims and
conducting extensive ESI searches to locate responsive documents is not proportional to the
needs of the case.
In short, Plaintiff alleges that Virtusa discriminates against non-South Asian employees
with respect to hiring, promotions, and terminations. There is no aspect of this case that relates to
Virtusa’s computer systems or its capabilities. Plaintiff is not entitled to an additional search of
the agreed upon 32 custodians based on a subjective belief that the data provided by Virtusa may
be incomplete or inaccurate.
In addition, this request appears to be duplicative of other requests. Finally, there are less
burdensome ways to obtain the information Plaintiff seeks. Rather, as Defendant has suggested,
Plaintiff can send an interrogatory or ask witnesses at depositions about Virtusa’s computer
systems. Accordingly, Plaintiff’s request is denied.
v. Plaintiff’s Fourth Set of Interrogatories No. 1
Plaintiff is seeking ESI relating to his Fourth Set of Interrogatories No. 1, which
asked Virtusa “[b]y year from 2014 through the present, identify the number of U.S. visas
Virtusa applied for, and for each such visa, identify the type, whether it was approved by the
government, whether it was a new application, renewal/extension or modification, the country of
origin of the sponsored employee, whether the employee traveled to the U.S. pursuant to the

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visa, and if so, the dates the employee was in the U.S., the position identified on the application,
the customer identified on the application, and the position(s) held by the employee once in the
U.S.” More specifically, it appears Plaintiff is seeking all “Visa-related information contained in
emails, reports, PowerPoints, graphs, or summaries regarding Virtusa’s visa filings, approvals,
budgeting, travel, etc. should be produced.”
Defendant maintains that it has already provided information responsive to this
Interrogatory in accordance with the Court’s previous Order on this subject. Further, Defendant
contends that this request vague, ambiguous and overbroad because in order to respond
Defendant would have to produce any document that references or relates to visas and that would
render the parties’ agreement to conduct targeted ESI searches for documents responsive to only
some of Plaintiff’s document requests using select search terms pointless. Searching for “all
visa-related information” will yield material that is not relevant to Plaintiff or his class
allegations. Nonetheless, Defendant has agreed to produce ESI responsive to other of Plaintiff’s
document requests that seek visa related information including:
• Documents sufficient to identify the individuals responsible for setting Virtusa’s
visa policies and practices;
• Documents sufficient to show the organization structure (e.g., organizational charts) of
any department involved in allocating staff (both local hires and visa workers) for U.S. positions,
and any department involved in applying for U.S. visas or tracking U.S. visa status from 2014 to
the present;
• Documents and ESI reflecting all policies and procedures for . . . any department

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involved in allocating staff (both local hires and visa workers) for U.S. positions, any department
involved in promotions for employees in the U.S., and any department involved in applying for,
budgeting for, or tracking the status of U.S. visas;
• Documents and ESI relating to the staffing of positions in the United States,
including but not limited to any instructions or guidance concerning staffing an actual or
prospective customer project with a non-visa-dependent or a visa-dependent Virtusa employee,
the securing of visas to staff customer projects, the availability of visa-dependent Virtusa
employees overseas, on the bench, or on another project, the availability of non-visa-dependent
Virtusa employees on the bench or on another project; and
• Documents and ESI relating to all instructions, policies, procedures, directives,
mandates, or preferences concerning recruiting, hiring, position staffing/allocation, benching, job
placement of individuals with visas, promotions, and terminations.
Defendant has also agreed to produce ESI relating to Virtusa’s business reports, including
its reports on visas including ESI relating to visa cost reports, visa tracking reports, and visa
status reports. Thus, Plaintiff will obtain the visa information he requires. Accordingly,
Plaintiff’s request is denied.
3. Virtusa reserves the right to request costs in the event that pulling and hosting the email
files for the requested custodians is prohibitively expensive
Virtusa has informed Plaintiff’s counsel that the cost to collect the custodians requested
by Plaintiff and to perform the related the searches may be “prohibitively expensive”. These
costs include, among other things, collecting 32 custodians’ email boxes, processing the data,
and hosting the data. Virtusa has advised Plaintiff that it reserves the right to make an
application to the Court for cost sharing.

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Inasmuch as no such application has been presented, the Court defers any consideration
of this issue.
III. CONCLUSION AND ORDER
The Court has carefully considered the arguments of the parties and, for the reasons
above,
IT IS on this 10th day of November 2020
ORDERED that Plaintiff’s requests as to the discovery issues presented to the Court in
the September 8, 2020 joint submission are denied as set forth above.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge

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