Mason et al v. Lumber Liquidators, Inc.

Filing 209

MEMORANDUM AND ORDER granting in part and denying in part 205 Motion to Compel. See attached for discussion. Ordered by Magistrate Judge Roanne L. Mann on 9/9/2020. (Proujansky, Josh)

Case 1:17-cv-04780-MKB-RLM Document 209 Filed 09/09/20 Page 1 of 2 PageID #: 2017

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ASHLEIGH MASON, et al.,
Plaintiffs,

-against-

MEMORANDUM
AND ORDER
17-CV-4780 (MKB)

LUMBER LIQUIDATORS, INC.,
Defendant.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
In April 2019, defendant sent arbitration agreements to all putative collective members in
this Fair Labor Standards Act case, after which this Court instructed defendant to issue a corrective
notice and prohibited defendant from further communicating with putative collective members
concerning this lawsuit or arbitration. See Minute Entry and Order (May 21, 2019), Electronic
Case Filing Docket Entry (“DE”) #75. Plaintiffs now move to compel defendant to (1) produce
the entire contents of three arbitration email inboxes it created for this litigation and a related
California litigation, and (2) apply previously-agreed arbitration-related search terms to the email
inboxes of three corporate custodians of defendant and produce all responsive documents. See
Letter Motion to Compel Arbitration-related ESI Discovery (Aug. 28, 2020), DE #205.
The document requests underlying plaintiffs’ motion to compel were served on September
19, 2019. See id. at 1-2. At the conclusion of a hearing held on January 3, 2020, the Court
directed the parties to confer in good faith to resolve their remaining disputes over the scope of
collective discovery. See Minute Entry and Order (Jan. 3, 2020), DE #180. Thereafter, the
parties agreed on a Stipulation setting forth the scope of collective discovery, including information

Case 1:17-cv-04780-MKB-RLM Document 209 Filed 09/09/20 Page 2 of 2 PageID #: 2018

concerning the arbitration agreement roll-out, see Proposed Scheduling Order re Scope of
Collective Discovery (Jan. 17, 2020), DE #182, and this Court so-ordered the Stipulation on
January 21, 2020, see Status Report Order (Jan. 21, 2020).
It is undisputed that the parties’ agreement does not include the ESI sought here. If
plaintiffs had a different understanding of the parties’ agreement regarding the scope of arbitrationrelated discovery, they would not have waited until after almost one year from when their requests
were served before moving to compel a response. The misunderstanding between the parties’
counsel may be attributable to the fact that the pending motion to compel was filed by plaintiffs’
co-counsel, who first appeared in this case several months after the parties reached agreement on
the scope of collective discovery.
In any event, plaintiffs have made no showing to support their assumption that responsive
documents are likely to be found in the email inboxes of the three custodians identified. Therefore,
the Court concludes that the potential probative value of the outcome of a search is likely
outweighed by the burden that would be imposed on defendant in having to run an additional ESI
search.
Since defendant agreed to produce the entire contents of the three arbitration email inboxes,
which are unquestionably relevant, the Court grants plaintiffs’ motion to that limited extent.
SO ORDERED.
Dated:

Brooklyn, New York
September 9, 2020
/s/

Roanne L. Mann

ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE
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