Raymond James & Associates, Inc. v. 50 North Front St. TN, LLC
Filing
341
ORDER granting in part Plaintiff's motion for discovery sanctions. Signed by Chief Magistrate Judge Tu M. Pham on 8/7/2020. (nph)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
RAYMOND JAMES & ASSOCIATES,
INC.,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
50 NORTH FRONT ST. TN, LLC,
Defendant.
18-cv-2104-JTF-tmp
ORDER GRANTING IN PART MOTIONS FOR SANCTIONS
Before the court by order of reference are Raymond James &
Associates, Inc.’s (“Raymond James”) Motion to Compel and for
Discovery Sanctions and Raymond James’s Second Motion to Compel
and for Discovery Sanctions. (ECF Nos. 189; 191; 197; 198.) In
response, 50 North Front St. TN, LLC (“50 North”) has moved for
sanctions as well. (ECF No. 200.) This order addresses only the
aspects of those motions requesting sanctions for 50 North’s
production of documents. The remainder of the motions have been
dealt with by separate order.
For the following reasons, Raymond
James’s motions for sanctions are GRANTED IN PART and 50 North’s
motion for sanctions is DENIED.
I.
BACKGROUND
Some time ago, a dispute arose between Raymond James and 50
North about requests for production Raymond James had propounded
on 50 North. Raymond James eventually moved to compel. The court
held a hearing and entered an order. (ECF No. 101.) Specifically,
the court stated in relevant part that:
[T]he court orders 50 North and Raymond James to meet
and confer to determine search terms for 50 North’s
document search no later than seven days from the date
of this order. 50 North shall then conduct a reasonably
diligent search (with the supervision of counsel),
review
those
documents,
produce
all
responsive
documents, and to the extent it asserts a privilege, it
may withhold production of those documents and produce
a privilege log. 50 North shall complete its production
no later than twenty-one days from the date of this
order. On these grounds, Raymond James’s motion to
compel is hereby GRANTED.
(ECF No. 101 (bolding and underlining added).) However, this did
not end the dispute. After meeting and conferring, the parties
failed to come to an agreement about search terms. Raymond James
filed notices of noncompliance. The court held a hearing and
entered an order. (ECF No. 172.) The order specified the search
terms and custodians 50 North was to use in its search. The order
further specified that:
counsel for 50 North shall produce all responsive, nonprivileged documents from the above referenced e-mail
searches, along with a privilege log, and the above
identification of additional employees to counsel for
Raymond James within thirty days of February 8, 2019,
i.e., no later than March 11, 2019.
(ECF No. 172 (bolding and underlining added).) However, instead of
conducting a responsiveness review, 50 North ran the required email
searches, conducted a privilege review, and then simply produced
all of the remaining documents — whether responsive to Raymond
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James’s requests or not. The resulting production consisted of
about 800,000 pages of documents. (ECF No. 197-1.)
50
resulted
North’s
in
responsive
the
decision
to
to
production
the
forego
of
requests
many
for
a
responsiveness
documents
production.
that
review
were
Raymond
not
James
represents in its brief — and 50 North does not appear to dispute
— that of the first hundred produced documents, forty-nine are
“completely irrelevant.” (ECF No. 189-1.) In an exhibit to its
brief, Raymond James presents some of the more egregious examples
of irrelevant produced documents from just the initial production,
including:
“[e]mail regarding renovations to a tattoo parlor in Ohio;”
“[a] newsletter from the United Talmudical Academy in Kiryas
Joel, New York (written mostly in a foreign language);”
“[e]mails
regarding
a
McDonalds
in
Landlord’s
Hartford,
Connecticut building;” and
“[e]mail regarding a ‘Heal-a-thon’ in New Jersey[.]”
(ECF No. 189-1.) For obvious reasons, none of these emails are
responsive to Raymond James’s discovery requests. In an effort to
cull the production to responsive documents, Raymond James hired
a team of contract attorneys to conduct a manual document-bydocument review of the production. (ECF No. 197-1.) Raymond James
also moved for sanctions, both after service of 50 North’s initial
production and after the remainder was produced.
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50
North
argues
that
it
was
not
required
to
conduct
a
responsiveness review under the court’s prior orders. It argues
that when the court ordered it to produce “all responsive, nonprivileged documents from the above-referenced e-mail searches,”
that the court meant to produce “the non-privileged documents that
were responsive to the search terms.” (ECF No. 194-1.) 50 North
further argues that any obligation it may have had to conduct a
relevance review under the court’s first order, (ECF No. 101), was
abrogated by the court’s second order, (ECF No. 172). 50 North
further argues that the court should instead sanction Raymond James
for seeking discovery sanctions. (ECF No. 200.)
II.
A.
ANALYSIS
The Prior Orders
This court’s orders were clear that 50 North had an obligation
to review the documents it produced in response to the disputed
requests for production. The court’s first order specifically said
that 50 North was to “review those documents” returned from the
document searches and produce those which were “responsive.” (ECF
No. 101.) When the court entered a second order specifying what
document search terms 50 North was to use, it again made clear
that 50 North was to produce “all
responsive, non-privileged
documents from the above referenced e-mail searches.” (ECF No. 172
(emphasis added).) Any ambiguity about what the word “responsive”
meant in this context should have been clarified by reference to
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the previous order, which specifically instructed 50 North to
review the documents from agreed-upon search terms and produce the
ones responsive to the requests for production.
50
North
argues
that
the
irrelevant
documents
in
its
production are a product of the breadth of the search terms Raymond
James insisted upon. But this has no bearing on the issue at hand
— whether 50 North was obligated to do a responsiveness review. 1
50 North next argues that it had the right to not conduct a
responsiveness
review
under
Federal
Rule
of
Civil
Procedure
34(b)(2)(E) because it produced its documents as “kept in the usual
course of business[.]” Fed. R. Civ. P. 34(b)(2)(E). However, even
assuming Rule 34 permits a party to forgo a relevance review, 2 the
150
North also argues Raymond James’s motions should be denied
because Raymond James did not sufficiently attempt to engage in
good-faith consultation before filing this motion, as required by
Local Rule 7.2(a)(1)(B). The undersigned does not believe it
appropriate
to
deny
the
motion
on
this
ground.
2The
court is skeptical Rule 34 permits this in the context of
voluminous electronic discovery. “[T]he production of ESI must be
rationally organized to enable the parties to determine if
responsive documents have been produced.” Kwasniewski v. SanofiAventis U.S. LLC, No. 2:12-CV-00515-GMN, 2013 WL 3297182, at *1
(D. Nev. June 28, 2013). “[A] party exercising Rule 34's option to
produce records as they are kept in the usual course of business
should organize the documents in such a manner that the requesting
party may obtain, with reasonable effort, the documents responsive
to their requests.” City of Colton v. Am. Promotional Events, Inc.,
277 F.R.D. 578, 585 (C.D. Cal. 2011) (internal citations and
quotations omitted). A party “may not frustrate the spirit of the
discovery rules by producing a flood of documents it never reviewed
. . . and thus bury responsive documents among millions of produced
pages.” Youngevity Int'l Corp. v. Smith, No. 16CV00704BTMJLB, 2017
WL 6541106, at *10 (S.D. Cal. Dec. 21, 2017). “Such a tactic can
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Rule only applies “[u]nless otherwise stipulated or ordered by the
court[.]” Fed. R. Civ. P. 34(b)(2)(E). Here, the court ordered 50
North to “review those documents” returned from document searches
and produce those which were “responsive.” (ECF No. 101.) 50 North
should have conducted a responsiveness review.
B.
Sanctions
“Discovery sanctions may be appropriate when a party ‘fails
to
obey
an
order
to
provide
or
permit discovery.’”
Peltz
v.
Moretti, 292 F. App'x 475, 479 (6th Cir. 2008) (quoting Fed. R.
Civ. P. 37(b)(2)). Sanctions may include an award of legal fees.
ECIMOS, LLC v. Nortek Glob. HVAC, LLC, 736 F. App'x 577, 582 (6th
Cir. 2018). However, sanctions are not appropriate if a litigant’s
position was substantially justified or if other circumstances
would
make
an
award
of
sanctions
unjust.
Fed.
R.
Civ.
P.
37(b)(2)(c). A motion is ‘substantially justified’ if it raises an
issue about which ‘there is a genuine dispute, or if reasonable
people could differ as to the appropriateness of the contested
action.’” Doe v. Lexington-Fayette Urban Cty. Gov't, 407 F.3d 755,
765 (6th Cir. 2005) (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)). A party’s position need not be “justified to a high
bury relevant evidence and force the receiving party to expend
considerable time and expense parsing through documents in order
to glean information which may be relevant.” Scott Hutchison
Enterprises, Inc. v. Cranberry Pipeline Corp., 318 F.R.D. 44, 54
(S.D.W. Va. 2016).
-6-
degree” to be substantially justified, just “justified to a degree
that could satisfy a reasonable person.” Id.
50 North’s position does not meet this standard. The court’s
prior order was clear about the need to produce “responsive”
documents from a set of established email searches. A reasonable
party would not have felt substantially justified interpreting
that as permitting them to turn over all of the documents from the
email searches without any review for responsiveness.
Raymond James seeks sanctions compensating it for the full
cost of hiring contract attorneys to conducts a manual review of
the production. 50 North argues that because the documents were
produced in a text-searchable format, Raymond James could have
used targeted keyword searches to filter out irrelevant documents
without the expense of manual document-by-document responsiveness
review. Without more information about the costs Raymond James
incurred in its manual responsiveness review compared to the costs
Raymond James would have incurred in culling the production through
targeted searches or technology-aided review, the court cannot
evaluate this argument to determine whether all or only some of
the expense should be paid by 50 North. Given this, Raymond James’s
motions for sanctions are GRANTED IN PART and 50 North’s motion
for sanctions is DENIED. Within thirty days of the entry of this
order, Raymond James’s counsel shall file a declaration setting
forth in detail the fees and expenses reasonably incurred as part
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of its review as well as a memorandum explaining why those expenses
were necessary. 50 North shall file a response no later than thirty
days after Raymond James’s declaration is filed. Should either
party
require
additional
time
to
file
based
on
the
ongoing
coronavirus pandemic, the court will liberally grant extensions.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
August 5, 2020
Date
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