Lareau v. Northwestern Medical Center
Filing
152
OPINION AND ORDER denying 117 Motion to Compel Production of ESI. Signed by Judge William K. Sessions III on 3/27/2019. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ASHLEY M. LAREAU,
Plaintiff,
v.
NORTHWESTERN MEDICAL CENTER,
Defendant.
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Case No. 2:17-cv-81
OPINION AND ORDER
Plaintiff Ashley Lareau is suing Northwestern Medical Center
(“NMC”) for wrongful termination, claiming that NMC fired her, at
least in part, because of her disability.
Now before the Court
is Lareau’s motion to compel electronically stored information
(“ESI”) in NMC’s possession.
In a prior Order, the Court
directed the parties “to confer and arrive at a reasonable scope
of ESI production using appropriate search terms and in a format
that reasonably accommodates Plaintiff’s needs without overly
burdening NMC.”
ECF No. 105 at 2.
The parties have been unable
to identify search terms that satisfy those parameters.
For the reasons set forth below, the motion to compel is
denied.
Background
Lareau initially asked NMC to produce ESI using 18 search
terms.
emails.
The ESI in question includes approximately 24,000 NMC
Using only seven of those 18 terms, NMC produced over
3,000 pages of documents and objected to the scope of the
request.
Lareau moved to compel, and the Court issued the above-
cited Order requiring the parties to confer and agree upon
appropriate search terms.
Lareau subsequently proposed 34 search terms, some of which
were in the original list to which NMC had objected.
NMC
informed Plaintiff’s counsel that using the first four of the
proposed 34 terms, it had spent over 20 hours retrieving 2,912
documents totaling 5,336 pages.
Lareau’s counsel later
acknowledged in an email that the initial production was
voluminous and unwieldy, and suggested that NMC use only the
newly-proposed search terms.
NMC made another effort to comply, performing a search using
the suggested term “Experian.”
The process of searching, coding,
and producing reportedly took five hours and identified 472
documents.
NMC represented to Lareau’s counsel that few of those
documents were relevant.
Extrapolating that work to 34 search
terms, NMC contends that Lareau’s production request would
require 170 hours of attorney and paralegal time and would
produce little, if any, relevant information.
NMC informed opposing counsel that given the burden of
production and the limited relevance of the search results, it
would not expend any additional time performing the requested
searches.
Lareau’s counsel has invited NMC to offer additional
suggestions as to search terms, but NMC has declined that
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invitation.
Lareau now contends that NMC is failing to comply
with the Court’s prior order, and asks the Court to issue a
second order requiring a conference of counsel, possibly mediated
by a magistrate judge or ENE evaluator.
Discussion
Under the Federal Rules of Civil Procedure, a party is
required to provide ESI unless it shows that the source of such
information is “not reasonably accessible because of undue burden
or cost.”
Fed. R. Civ. P. 26(b)(2)(B).
Once the responding
party shows that the ESI is not reasonably accessible, the
requesting party may still obtain discovery by showing good
cause.
Id.
“The decision whether to require a responding party
to search for and produce information that is not reasonably
accessible depends not only on the burdens and costs of doing so,
but also on whether those burdens and costs can be justified in
the circumstances of the case.”
Advisory Committee Note to the
2006 amendments to Rule 26(b)(2).
Here, the Court ordered cooperation among counsel, and
counsel’s efforts did not produce a workable solution.
NMC has
tried to comply and shown that, to date, the information sought
using Lareau’s proposed search terms is not reasonably
accessible.
Indeed, NMC has expended considerable time and
expense producing documents that reportedly have little relevance
to this case.
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The Court could nonetheless compel discovery for good cause
shown.
Fed. R. Civ. P. 26(b)(2)(B).
such showing.
Here, there has been no
In a typical case, a court will require the
parties “to test both the cost and the yield” of sample searches
in order to determine whether the discovery request is
reasonable.
See S.E.C. v. Collins & Aikman Corp., 256 F.R.D.
403, 418 (S.D.N.Y. 2009) (“The concept of sampling to test both
the cost and the yield is now part of the mainstream approach to
electronic discovery.”).
In this case, however, the parties have
already undertaken such testing, with the cost clearly outpacing
the value of the yield.
Without any indication that the parties
will develop effective search terms, Lareau nonetheless asks the
Court to extend that testing process.
NMC’s reports about its
initial efforts offer little hope that further sampling will
reveal a reasonable approach.
The Federal Rules dictate that discovery may not be used to
impose an unnecessary burden on an adversary or to seek
information that has no or minimal relevance to the claims or
defenses.
See generally Fed. R. Civ. P. 26(g)(1)(B)(iii).
In
this case, there is no allegation that Lareau’s requests have
been interposed in bad faith.
Nonetheless, as her counsel has
acknowledged, she is searching a massive database that has proven
difficult to manipulate, resulting in hours of wasted time and
resources.
Since the Court issued its prior Order, NMC has
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produced 3,384 additional documents containing little relevant
information.
Without any showing that additional searches are
likely to result in a higher rate of success, the Court will not
order NMC to engage in further problem-solving.1
Conclusion
For the reasons set forth above, the motion to compel (ECF
No. 117) is denied.
The parties shall bear their own fees and
costs with respect to this motion.
DATED at Burlington, in the District of Vermont, this 27th
day of March, 2019.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
1
Lareau argues that NMC has a duty to contribute to the
process of developing adequate search terms. That duty may
extend to providing words and abbreviations that are commonly
used in its database. See William A. Gross Const. Assocs., Inc.
v. Am. Mfg’rs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009)
(“where counsel are using keyword searches for retrieval of ESI,
they at a minimum must carefully craft the appropriate keywords,
with input from the ESI’s custodians as to the words and
abbreviations they use”). Here, such commons words and
abbreviations appear to have been incorporated into Lareau’s
search requests. See, e.g., ECF No. 117-2 at 3 (citing terms
such as “PIP” and “Medent”). An attorney is not required to
offer opposing counsel his or her own ideas about how to narrow a
particular search.
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