Thornton v. Morgan Stanley Smith Barney, LLC

Filing 93

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 53 Motion to Compel (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MAURINE THORNTON, an individual, )
)
Plaintiff,
)
)
v.
)
)
MORGAN STANLEY SMITH BARNEY, )
LLC, a Delaware Limited Liability
)
Company,
)
)
Defendant.
)

Case No. 12-CV-298-JED-FHM

OPINION AND ORDER
The issue of whether Plaintiff should be required to pay for some portion of the costs
of Defendant responding to Plaintiff’s request for production of e-mails is before the court
for decision. A hearing was held on this issue in connection with Plaintiff’s Second Motion
to Compel [Dkt. 53]. After the hearing, the parties filed additional briefs and supporting
affidavits.
Plaintiff contends that the requested discovery is reasonably focused on the
employees of Defendant who were directly involved in matters at issue in the case, limited
in time and the proposed search terms will limit production to relevant documents. Plaintiff
further contends the discovery is necessary because Defendant has not performed any
systematic search of its e-mail system for relevant e-mails.
Defendant responds that it has already produced substantial discovery including
relevant e-mails and that the e-mail search and production requested by Plaintiff is
overbroad and would impose an undue burden on Defendant based on the cost to comply
with the request. Defendant therefore requests that if Defendant is compelled to search
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for and produce the e-mails, some part of the cost be shifted to Plaintiff.
Defendant presented evidence that the estimated cost of searching for and
producing the e-mails would be $91,337.00 which could be reduced by as much as
$37,399.00 if the data was produced in native form. Defendant also presented evidence
that the estimated cost for initial privilege and responsiveness review would be
$534,717.00.
Plaintiff presented evidence that the cost estimates presented by Defendant were
inflated and that various steps could be taken to reduce the costs. Plaintiff also argues that
the review costs could be reduced or eliminated by the use of a “claw back” agreement
and/or a court order under F.R.Evid. 502.
The court has the authority to condition the discovery of e-mails by requiring the
party seeking the discovery to pay some or all of the costs. F.R.Civ.P. 26(b)(2)(B). The
decision of whether to do so is guided by F.R.Civ.P. 26(b)(2)(C). This authority is not
limited to situations where the e-mails are not reasonably accessible because they are not
on an active system. The cost of responding to the discovery request alone can be the
basis for cost shifting or sharing. However, the general rule is that the responding party
should bear the cost.
The court concludes that the burden and expense of the requested e-mail discovery
does not outweigh its likely benefit. Plaintiff was engaged in complicated trading activities
on behalf of her clients and Defendant involved multiple levels of management in imposing
restrictions on Plaintiff’s trading activities and ultimately Plaintiff’s termination. Although
Defendant has already

produced many relevant documents, including e-mails, no

systematic e-mail search has been done by Defendant. The cost for searching and
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production, either $91,337.00 or $53,938.00 ($91,337.00 - $37,399.00), is not
disproportionate to the needs of the case.
The cost of reviewing e-mails for privilege and responsiveness after they have been
located and prepared for production is generally not shifted or shared because the
responding party completely controls the level of any review and the associated costs.
Fleisher v. Phoenix Life Ins. Co., 2012 WL 6732905 (S.D.N.Y., 2012); Adair v. EQT
Production Co., 2012 WL 1965880 (W.D. Va. 2012). Moreover, Defendant has not
established that a particular level of review is necessary in this case or that a “claw back”
agreement or F.R.Evid. 502 order would not reduce or eliminate the estimated costs.
Based on the arguments presented the court denies Defendant’s request for cost
shifting or sharing. The cost of searching and producing does not place an undue burden
on Defendant. The cost of review is within Defendant’s control and there are reasonable
steps Defendant can take to reduce those costs.
Notwithstanding the court’s order denying Defendant’s request for cost shifting or
sharing, Plaintiff is hereby ordered to confer with Defendant in a good faith effort to reduce
the costs to Defendant.
Plaintiff’s Second Motion to Compel [Dkt. 53] is GRANTED as set forth herein.
IT IS SO ORDERED this 3rd day of May, 2013.

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