Emanuel et al v. Gap, Inc. et al
Filing
104
MEMORANDUM OPINION AND ORDER re: 92 MOTION to Set Aside August 17, 2020 Discovery Order pursuant to Rule 72(a). filed by Lacrena Taylor, Desa Emanuel. Plaintiffs' request that the Court overrule Magistrate Judge Smith's Order is DENIED. The Clerk is instructed to terminate the pending Motion (Doc. 92). SO ORDERED. (Signed by Judge Philip M. Halpern on 10/9/2020) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DESA EMANUEL and LACRENA
TAYLOR,
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
v.
GAP, INC., et al.,
19-CV-3617 (PMH)
Defendants.
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PHILIP M. HALPERN, United States District Judge:
On August 10, 2020, Magistrate Judge Lisa M. Smith issued an oral discovery ruling (the
“Aug. 10 Order”) regarding the scope of discovery related to the possible spoliation of evidence.
(Doc. 98, “Aug. 10 Tr.”).1 On September 9, 2020, Plaintiffs filed an Objection to the Order
pursuant to Federal Rule of Civil Procedure 72. (Doc. 92).2 Plaintiffs argue that the Aug. 10
Order “was clearly erroneous because it unfairly prejudiced Plaintiffs’ ability to obtain the
necessary discovery prior to making a complete spoliation motion as directed by this Court.”
(Doc. 93, “Pl. Br.” at 1). On September 21, 2020, Defendants filed their opposition brief (Doc.
96, “Defs. Br.”), and on September 28, 2020, Plaintiffs filed their reply (Doc. 99, “Reply Br.”).
For the reasons set forth below, the Court affirms Judge Smith’s Aug. 10 Order.
BACKGROUND
1
The moving papers refer to the Aug. 10 Order as the August 17, 2020 Order. However, Judge Smith
held a conference on August 10, 2020 during which she ruled orally on the parties’ discovery dispute. It
appears that the Minute Entry associated with the August 10 Conference was entered on ECF on August
17, 2020. (See Aug. 10, 2020 Min. Entry). For clarity and consistency, the Court refers to the relevant
Order challenged by Plaintiffs as the Aug. 10 Order.
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Plaintiffs were granted an extension of time until September 9, 2020 to file their Objection to the Aug.
10 Order. (Doc. 91). Therefore, the timing requirement of Rule 72(a), which requires that a party
objecting to the ruling of a magistrate judge file their objection within 14 days, is excused.
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On March 5, 2020, Plaintiffs filed a pre-motion conference letter in anticipation of
moving for sanctions pursuant to Federal Rule of Civil Procedure 37 in connection with
Defendants’ alleged spoliation of Electronically Stored Information (“ESI”). (Doc. 50).
Defendants opposed Plaintiffs’ pre-motion conference letter (Doc. 53) and Plaintiffs filed a reply
thereto (Doc. 57). The Court then held a pre-motion conference on May 21, 2020 (the “May 21
Conference”). The parties’ dispute largely centered around whether phones and/or computers
possessed by two individuals—Ms. Russo and Ms. Borowski—were not properly preserved for
discovery purposes in this action. (See generally Doc. 94-3, “May 21 Tr.”). The Court denied
Plaintiffs’ request to move for sanctions without prejudice to renew the request after the parties
engaged in additional discovery. (Id. at 10:2-13:20). The Court noted further that the case had
been referred to Magistrate Judge Smith on October 22, 2019 for all pre-trial purposes and,
therefore, the Court would not “inject[] [it]self in the discovery process when [its] predecessor
directed that Judge Smith handle those issues.” (Id. 17:9-10).3
Thereafter, the parties continued to engage in discovery, and on July 17, 2020 and July
21, 2020 respectively, the parties filed letters regarding a discovery dispute related to the scope
of spoliation-related discovery. (Docs. 84, 85). Specifically, Plaintiffs asserted that Defendants
had only agreed to produce limited spoliation-related discovery for two of nine identified
custodians and that Defendants’ position was “contrary to the Court’s clear mandate.” (Doc. 84
at 2). Defendants argued that Plaintiffs’ requests were overbroad and sought irrelevant
information. (Doc. 85 at 1). On July 22, 2020, Judge Smith held a status conference (the “July 22
Conference”) to address the dispute. (Doc. 98, Tr. of July 22, 2020 Conference, “July 22 Tr.”).
Judge Smith denied Plaintiffs’ application for additional spoliation-related discovery without
prejudice and directed Plaintiffs to file a letter which provided (1) additional information about
3
Judge Kenneth M. Karas presided over this case until it was reassigned to me on April 16, 2020.
2
the nine proposed custodians, specifically “what positions they hold or how they are involved in
this case” and (2) Plaintiffs’ proposed search terms. (Id. at 15:2-8).
On July 23, 2020, Plaintiffs filed their letter and on July 29, 2020, Defendants filed their
response. (Docs. 86, 89). Judge Smith held another conference on August 10, 2020 (the “August
10 Conference”). Judge Smith ruled orally on the pending discovery dispute (Doc. 94-8, “Aug.
10 Tr.”), and limited the discovery related to Ms. Russo and Ms. Borowski’s devices, found that
she was “not going to allow a fishing expedition,” and declined to permit spoliation-related
discovery for any custodians other than Ms. Russo and Ms. Borowski. (Id. at 20:4-17, 21:11-13,
25:10-16). As to one proposed custodian, Mr. Latter, Judge Smith found that there was “no
reason to believe that Mr. Latter's information was . . . known to be relevant to this litigation
prior to any wiping or destruction of his records.” (Id. at 21:5-9).
Plaintiffs’ Rule 72 Application asks this Court to modify or reject the Aug. 10 Order.
STANDARD OR REVIEW
Magistrate Judge Smith’s decision on the parties’ discovery dispute was non-dispositive.
See U2 Home Entm't, Inc. v. Hong Wei Int'l Trading Inc., No. 04-CV-6189, 2007 WL 2327068,
at *1 (S.D.N.Y. Aug. 13, 2007) (“Discovery matters are generally considered non-dispositive of
litigation.”). Federal Rule of Civil Procedure 72 permits a party to file objections to a nondispositive decision of a magistrate judge. Fed. R. Civ. P. 72(a). “The district judge in the case
must consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Id. “An order is clearly erroneous only when the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Rivera v. Hudson Valley Hosp. Grp., Inc., No. 17-CV-5636, 2019 WL 3955539, at
*2 (S.D.N.Y. Aug. 22, 2019) (quoting Khaldei v. Kaspiev, 961 F. Supp. 2d 572, 575 (S.D.N.Y.
3
2013)). A decision is “contrary to law if it fails to apply or misapplies relevant statutes, case law
or rules of procedure.” Id. (quoting Khaldei, 961 F. Supp. 2d at 575). A magistrate judge’s
“rulings on discovery matters are entitled to substantial deference,” and, therefore, “[t]he party
seeking to overturn a magistrate judge's decision . . . carries a heavy burden.” U2 Home Entm’t,
Inc., 2007 WL 2327068, at *1.
ANALYSIS
The gravamen of Plaintiff’s Rule 72 Application is that the Aug. 10 Order limiting
spoliation-related discovery contravenes this Court’s directives as expressed during the May 21
Conference and thus constitutes clear error. A review of the letters submitted by the parties to
Judge Smith, including the exhibits attached thereto, as well as the transcripts from the July 22
Conference and the August 10 Conference reveals that Judge Smith engaged in a thorough and
careful process in denying Plaintiffs additional spoliation-related discovery. Thus, because the
Aug. 10 Order is not clearly erroneous or contrary to law, the Court denies Plaintiffs’ Rule 72
Application.
First, Plaintiffs argue that it was clear error for Judge Smith to deprive Plaintiffs of the
opportunity to conduct additional discovery of Ms. Russo and Ms. Borowski’s devices. (Pl. Br.
at 7-8). Prior to the August 10 Conference, Plaintiffs submitted a chart which included four
categories of proposed search terms: “Data/Devices Search Terms,” “Preservation Search
Terms,” “Spoliation Search Terms,” and “Litigation Search Terms.” (Doc. 86-3). The Aug. 10
Order directed Defendants to apply the “Preservation” and “Spoliation” search terms to Ms.
Russo and Ms. Borowski’s devices, but denied Plaintiffs’ request that Defendants apply the
“Data/Devices” and “Litigation” search terms because those terms were “far too broad” and
application of the additional terms would be “extraordinarily expensive.” (Aug. 10 Tr. at 25:10-
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16). Plaintiffs have not pointed to any case law which establishes that Judge Smith’s decision
was clear error, and this Court agrees with Judge Smith that many of Plaintiffs’ proposed search
terms are overbroad. (See Doc. 86-3 (identifying as proposed search terms, inter alia, “data,”
“computer!,” “texts,” “suit,” “action”)). Judge Smith’s determination that only certain categories
of proposed search terms were relevant and tailored to the spoliation issue was well-reasoned.
A magistrate judge overseeing discovery is granted broad discretion to manage the
discovery process, including determinations regarding which search terms a party should apply.
See Moore v. Publicis Groupe SA, No. 11-CV-1279, 2012 WL 1446534, at *2 (S.D.N.Y. Apr.
26, 2012) (denying Rule 72 application challenging the magistrate judge’s implementation of an
ESI discovery protocol). Plaintiffs have failed to satisfy the heavy burden of establishing that
Judge Smith’s determination regarding which search terms to apply to Ms. Russo and Ms.
Borowski’s devices was clear error.
Next, Plaintiffs argue that Judge Smith should have permitted spoliation-related
discovery of seven additional custodians. (Pl. Br. at 8-9). After the July 22 Conference, Judge
Smith gave Plaintiffs an opportunity to provide additional information about the custodians from
whom Plaintiffs sought documents and specifically asked Plaintiffs to demonstrate “what
positions [the custodians] hold or how they are involved in this case.” (July 22 Tr. at 15:2-8).
After reviewing Plaintiffs’ submission—which asserts that only three custodians were directly
linked to “known spoliation”: Ms. Russo, Ms. Borowski, and Mr. Latter (Doc. 86-2)—Judge
Smith found that there was “nothing . . . that would lead me to believe that [the custodians other
than Ms. Russo, Ms. Borowski, and Mr. Latter] had anything to do with spoliation” and that to
permit additional spoliation-related discovery would amount to a “fishing expedition.” (Aug. 10
Tr. at 9-12). As to Mr. Latter, Judge Smith found that Plaintiffs’ arguments regarding Mr.
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Latter’s alleged spoliation were “exceedingly misleading” (id. at 5:21) and that, in any event,
Plaintiffs had failed to demonstrate that “Mr. Latter's information was, A, unique, B, directly
relevant to any of the issues here or . . . C, known to be relevant to this litigation prior to any
wiping or destruction of his records.” (Id. at 21:6-9). The Court finds no clear error in Judge
Smith’s well-reasoned finding. Judge Smith concluded that the other custodians “had nothing to
do with [the] spoliation” and Plaintiffs have not made the requisite showing that this
determination was erroneous.
Additionally, Plaintiffs argue that the Court should direct Defendants to provide Plaintiffs
with a hit report of searches for these additional custodians. (Pl. Br. at 9). The Court will not
direct that Defendants provide Plaintiffs with a hit report as Plaintiffs have pointed to no case
law that establishes such a right, and the Court is aware of none.
This Court referred this matter to Judge Smith for all pre-trial matters, including
discovery. Thus, it is inappropriate and unnecessary for the Court to be involved in this dispute.
Judge Smith did not contravene this Court’s directives and engaged in a thorough and careful
review of the issues related to the scope of spoliation-discovery. It simply cannot be said that the
Court is “left with the definite and firm conviction that a mistake has been committed.” Rivera,
2019 WL 3955539, at *2 (quoting Khaldei, 961 F. Supp. 2d at 575). Accordingly, Plaintiffs’
Rule 72 Application is denied in its entirety.4
In reply, Plaintiffs assert for the first time that Defendants “refused to produce a 30(b)(6) witness
regarding Defendants’ policies and procedures related to company computers, cell phones and any other
electronic devices on the grounds that it exceeded the scope of the spoliation [sic] discovery ordered by
the Court.” (Pl. Reply at 6). To the extent Plaintiffs raise discovery disputes that have not yet been subject
to determination by the magistrate judge, it is neither appropriate nor proper for the Court to resolve such
disputes. See Rodriguez v. Pataki, 293 F. Supp. 2d 313, 315 (S.D.N.Y. 2003) (denying portion of Rule 72
objections in which the parties requested rulings on issues not subject to the magistrate judge’s order
because “[t]he Court has referred all discovery disputes in this case to [the magistrate judge] and he is in
the best position to review them in the first instance.”); see also Verint Sys. Inc. v. Red Box Recorders
Ltd., 183 F. Supp. 3d 467, 472 (S.D.N.Y. 2016).
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CONCLUSION
Plaintiffs’ request that the Court overrule Magistrate Judge Smith’s Order is DENIED.
The Clerk is instructed to terminate the pending Motion (Doc. 92).
SO ORDERED.
Dated: New York, New York
October 9, 2020
____________________________
Philip M. Halpern
United States District Judge
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