Ruiz-Bueno, III et al v. Scott et al

Filing 139

OPINION AND ORDER granting 124 Motion to Compel Discovery; denying 132 Motion to Strike & granting 133 Motion for Leave to File Reply Instanter - Defendants shall provide complete answers to plaintiffs' second set of interrogatories w/in seven (7) days. Signed by Magistrate Judge Terence P Kemp on 11/15/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John C. Ruiz-Bueno, III, et al.,:
Case No. 2:12-cv-0809
Plaintiffs,

:
JUDGE GREGORY L. FROST

v.

:
Magistrate Judge Kemp

Zach Scott, et al.,

:

Defendants.

:
OPINION AND ORDER

This wrongful death case is before the Court by way of
plaintiffs’ motion to compel answers to their second set of
interrogatories.

The motion is fully briefed.

In connection

with the motion, defendants moved to strike the reply memorandum
because it was filed a day late (and also because, in their view,
it exceeds the proper scope of a reply), and plaintiffs moved for
leave to file that same reply instanter.

These latter two

motions need no detailed discussion; the motion for leave to file
instanter (Doc. 133) is granted and the motion to strike (Doc.
132) is denied.

For the following reasons, the Court will grant

the motion to compel discovery.
I.

Introduction

The second set of interrogatories consists of two questions.
Those questions ask defendants to explain (1) what efforts they
made to comply with plaintiffs’ previous discovery requests, and
(2) what procedures or methods were used to search for responsive
electronically stored information, or ESI.

Defendants’ response

to each interrogatory was brief, and the Court quotes it in full:
This interrogatory seeks irrelevant information
which is not related to any of the claims or defenses
in this case and which is not likely to lead to the
discovery of admissible evidence. The Defendants’
discovery methods have no bearing on any aspect of this

case.
See Doc. 124, PAGEID #730.

The exhibits attached to the parties’

memoranda show that they corresponded about this matter but
reached an impasse.

The motion presents two relatively

straightforward questions: (1) is discovery about discovery ever
permissible, and (2) if so, is it permissible under the facts of
this case?

The Court will address these questions in turn.
II.

Discovery about Discovery

Defendants argue for a quick and easy resolution of the
motion on the grounds that discovery itself is not a proper
subject of discovery.

They cite one case in support of their

position, and otherwise base their argument on the language of
Fed.R.Civ.P. 26(b)(1).

In their view, discovery is not a “claim

or defense” in the case.

Therefore, since the proper scope of

discovery is limited by Rule 26(b)(1) to “any nonprivileged
matter that is relevant to any party's claim or defense,”
plaintiffs’ attempt to delve into the details of defendants’
efforts to respond to discovery are simply irrelevant.
Defendants’ argument is appealing in its simplicity but it
fails to acknowledge the nuanced nature of discovery.

Even Rule

26(b)(1), in language which appears immediately after the words
quoted above, makes clear that information about “the existence,
description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location
of persons who know of any discoverable matter” is within the
proper scope of discovery.

Strictly speaking, the location or

description of documents pertinent to the case is not relevant to
the parties’ claims or defenses, but it is the type of
information which can assist a party in structuring his or her
discovery or in pursuing discovery effectively and efficiently.
For that reason the drafters of the Rule have deemed it

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“relevant” for discovery purposes.

In fact, this concept has

been present in Rule 26 since at least 1946, when the Advisory
Committee Notes to Rule 26(b) explained that “[t]he purpose of
discovery is to allow a broad search for facts, the names of
witnesses, or any other matters which may aid a party in the
preparation or presentation of his case.”

Sometimes, information

about discovery is a matter which “may aid a party in the
preparation ... of his case.”

When that is true, that

information is relevant within the meaning of Rule 26(b).
The case law fully supports this conclusion.
will suffice.

A few examples

In Strauss v. Credit Lyonnais, S.A., 242 F.R.D.

199, 232 (E.D.N.Y. 2007), the court directed a party to answer an
interrogatory asking for the identity of persons or entities who
either supplied or participated in supplying documents which were
produced in response to a request for production.

That is

clearly discovery about discovery, yet the court held that it was
relevant because it would “allow defendant the opportunity to
seek documents from the same sources from which plaintiffs
obtained documents .....”

In McNearney v. Washington Dept. of

Corrections, 2012 WL 3155099, *6 (W.D. Wash. Aug. 2, 2012), the
court compelled an answer to an interrogatory which asked for
“the identity of persons who performed the ESI searches, the ESI
storage locations that were searched, and the search terms that
were used.”

It reasoned that “this interrogatory is calculated

to lead to the discovery of admissible evidence as it seeks to
discover whether Defendant has made a reasonable and thorough
search for responsive electronic records that may yield
admissible evidence.”

And at least one court has compelled

production of information about discovery (specifically, a
party’s “search strategy for identifying pertinent documents,
including the procedures it used and how it interacted with its
counsel to facilitate the production process”) without the need
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for an interrogatory, holding that the information was relevant
to the question of whether counsel actually performed those
duties which, by signing a discovery response in accordance with
Rule 26(g), counsel certified that he did.

See S2 Automation LLC

v. Micron Technology, Inc., 2012 WL 3656454, *32 (D.N.M. Aug. 9,
2012).

That same decision pointed out that, earlier in the

litigation, the court had “noted that an interrogatory would
likely be a better tool” than a document request to discover “the
search strategy [the plaintiff] took when determining what
documents to produce ....”

Id. at *30.

That would have been a

surprising comment to make if the information was irrelevant or
not a proper subject of discovery.
This Court, too, has a history of allowing not just
discovery on this type of issue, but also conducting an
evidentiary hearing if a party’s efforts to comply with proper
discovery requests are reasonably drawn into question.

See,

e.g., Bratka v. Anheuser-Busch Co., Inc., 164 F.R.D. 448, 460
(S.D. Ohio 1995)(finding, after a hearing, that the defendant
“failed to show that it made a good faith effort to provide the
required discovery” and imposing sanctions, including a default
judgment on the issue of liability).
The one case which defendants cited in support of their
argument, Hanan v. Corso, 1998 WL 429841 (D.D.C. Apr. 24, 1998)
is not contrary authority.

The holding of that case (as opposed

to comments which are merely dicta), as it applies to the
plaintiff’s attempt to obtain discovery about the defendants’
efforts to respond to his prior discovery requests, was this.
Because (1) the defendants had already filed several declarations
addressing that exact subject, and (2) the plaintiff could not
“specify what additional information the new discovery will yield
which these declarations do not contain,” any further discovery
on the subject was neither “relevant or likely to lead to
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admissible evidence.”

Id. at *7.

Although the Hanan court noted

that discovery about discovery would, if permitted in every case,
be “fraught with peril,” id., the holding certainly did not go so
far as to say that even in a case where an inquiry into an
opposing party’s methods of gathering discovery responses was
reasonable, no discovery about those efforts would be allowed.
In short, this Court has little difficulty concluding that
neither Rule 26(b)(1) nor the applicable case law supports an
absolute ban against the type of inquiries made in plaintiffs’
second set of interrogatories.

That conclusion leads logically

to the next question, which is whether the history of this case
makes plaintiffs’ inquiries reasonable ones.
III.

When Discovery about Discovery is Permitted

Even in a case like this, questions can arise about the
storage and retrieval of ESI.

In fact, from the email chains and

letters which both parties have attached to their memoranda, it
appears that plaintiffs’ distrust of the diligence with which
defendants searched for ESI is at the heart of the current
dispute.

Because none of that information was properly

authenticated or sworn to, however, the Court really does not
have a record of what defendants did or did not do to find ESI,
or what the actual state of defendants’ ESI happens to be.

Cf.

Local Civil Rule 7.2(d) (discussing the submission of evidence
“[w]hen proof of facts not already of record is necessary to
support or oppose a motion ...”); Local Civil Rule 7.2(e)(stating
that the proper form of such evidence is “affidavits,
declarations pursuant to 28 U.S.C. § 1746, deposition excerpts,
admissions, verified interrogatory answers, and other documentary
exhibits”).

Nonetheless, the Court infers that defendants

resisted answering these two interrogatories not only because
they believed that “discovery about discovery” was irrelevant,
but because they believed that they had, through counsel’s
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representations, satisfactorily addressed any concerns about
whether they had

made a good faith effort to locate and produce

all relevant emails.
In an ideal world (a situation which apparently does not
exist here), these types of disputes would never be presented to
the Court because counsel would have recognized, early in the
case, the potential for disagreements about proper search
protocols, and would have actively sought to avoid such
disagreements through collaboration.

That concept appears in

Fed.R.Civ.P. 26(f), which requires the parties to meet and confer
early in the case about, among other matters, discovery, and,
more specifically, to discuss “any issues about disclosure or
discovery of electronically stored information, including the
form or forms in which it should be produced....”
26(f)(3)(C).

Rule

That discussion can and should include cooperative

planning, rather than unilateral decision-making, about matters
such as “the sources of information to be preserved or searched;
number and identities of custodians whose data will be preserved
or collected ...; topics for discovery; [and] search terms and
methodologies to be employed to identify responsive data....”
Milberg LLP and Hausfeld LLP, “E-Discovery Today: The Fault Lies
not in Our Rules...,” 4 Fed. Cts. L. Rev. 131, 163 (2011).

When

that occurs, each party is able to exert some measure of control
over the e-discovery process, and, in turn, to have some measure
of confidence in its results.
Here, by contrast, it appears that defendants have been
reluctant to share any of that information with plaintiffs.
Although they have explained that the lack of ESI in this case is
due to the relatively infrequent use of email within the
Sheriff’s office, they have not explained how they went about
searching for such communications beyond the fact that each
defendant was asked (twice, according to counsel’s email) to
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produce his or her relevant emails.

Perhaps that is a proper

response to an opposing party’s request for ESI; perhaps not.

It

certainly can be argued that either an organization like the
Sheriff’s office, which presumably has access to and control over
the entirety of its ESI including employee-generated email, or
that organization’s litigation counsel, should undertake a more
comprehensive search of the email database rather than simply
relying on 50 different employees to search emails in some
unspecified manner.
here?

How did the individual defendants do that

Through keyword searches?

recipient?

Through searching by sender or

Through searching emails sent or received in a

specified time frame?

Or going by memory?

Did they all do it

the same way, or were they left to pick among various methods?
The record provides no answer to these questions.
What should have occurred here is that either as part of the
Rule 26(f) planning process, or once it became apparent that a
dispute was brewing over ESI, counsel should have engaged in a
collaborative effort to solve the problem.

That effort would

require defendants’ counsel to state explicitly how the search
was constructed or organized.

Plaintiffs’ counsel would then

have been given the chance to provide suggestions about making
the search more thorough.

That does not mean that all of

plaintiffs’ suggestions would have to be followed, but it would
change the nature of dispute from one about whether plaintiffs
are entitled to find out how defendants went about retrieving
information to one about whether those efforts were reasonable.
That issue cannot be discussed intelligently either between
counsel or by the Court in the absence of shared information
about the nature of the search.
Some attorneys may view this type of collaborative approach
and sharing of information as an intrusion into privileged areas
or as less than zealous advocacy for their clients.
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In fact, the

defendants in this case have suggested, in a footnote (albeit
without any cited support, and not in their objections to the
interrogatories), that in order to answer the plaintiffs’
interrogatories they would have to disclose privileged
communications because “Defendants’ discovery efforts involve
communication with counsel ...”

Doc. 130, at 2 n.1.

That may

well be true in some broad sense, but there is a vast difference
between describing, factually, what a party has done to comply
with a document request, and revealing discussions between
counsel and the client about that process.

Simply put,

discussing how to go about searching for and producing ESI does
not ordinarily or necessarily entail revealing confidential
client communications.
A collaborative discovery process is also completely
consistent with the lawyer’s duty to represent the client
zealously.

As one court has observed,

It cannot seriously be disputed that compliance with
the “spirit and purposes” of these discovery rules
requires cooperation by counsel to identify and fulfill
legitimate discovery needs, yet avoid seeking discovery
the cost and burden of which is disproportionally large
to what is at stake in the litigation. Counsel cannot
“behave responsively” during discovery unless they do
both, which requires cooperation rather than
contrariety, communication rather than confrontation.
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-58
(D. Md. 2008).

The Rules of Civil Procedure, from the mandatory

disclosure provisions of Rule 26(a) to the various “meet and
confer” obligations imposed by Rule 26(f) and other portions of
Rules 26 and 37, contain many such requirements that counsel
approach discovery cooperatively.

This area is no different.

Having said all that, the past is peculiarly unreceptive to
change.

Not so with the future.

Simply put, when plaintiffs

expressed some skepticism about the sufficiency of defendants’

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efforts to produce emails in this case based on the large number
of parties and the small number of documents produced,
defendants’ counsel should have been forthcoming with information
not only about why the results were as they were, but how
defendants looked for responsive documents.

That did not happen.

The Court has the power, either by granting the motion to compel
or in order to carry out its responsibility to ensure compliance
with the Rules of Civil Procedure, to make that happen now.
While the Court agrees that not every case will justify directing
counsel or a party to provide “discovery about discovery,” it
appears to the Court that such an order is needed in this case.
That is based, at least in part, on the fact that plaintiffs’
concern about the volume of ESI appears to be reasonably
grounded; the fact that defendants were less than forthcoming
with information needed to make further discussion of the issue a
collaborative rather than contrarian process; and the need to get
this case moving toward resolution.

Because, at this point, a

statement made under oath would seem to have a greater potential
to move the case along rather than a mere representation by
counsel, the Court’s order will take the form of an order
compelling discovery.
IV.

Some Additional Observations

From both personal observation and from the tenor of
telephone conferences and written submissions (not to mention the
filing of unnecessary motions like defendants’ motion to strike),
it appears that the relationship between counsel in this case is
not what it should be.

The Court does not know, and hopefully

will never need to determine, why that is so.

There is more

discovery ahead, and there is, potentially, a lengthy trial if
the case is not resolved by way of summary judgment.

Counsel

need to cooperate in order for those processes to be costefficient for their own clients and for the Court.

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This order

presumes that any issues which remain after defendants describe
their document retrieval process will be addressed cooperatively.
If not, the Court will reluctantly consider whether sanctions are
needed in order to force the type of cooperation which the Rules
of Civil Procedure require.

It does not do that lightly, and it

is sincerely hoped that a cautionary note at this juncture will
be all that is needed.
V.

Order

Based on the foregoing, plaintiffs’ motion to compel (Doc.
124) is granted.

Within seven days, defendants shall provide

complete answers to plaintiffs’ second set of interrogatories.
Thereafter, the parties shall discuss in good faith whether any
additional search methods should be undertaken.

If they cannot

agree, after making a sincere effort to do so, they shall arrange
a telephone conference with the Court.
VI.

Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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