ERICA P. GROSJEAN, Magistrate Judge.
This case proceeds on Kimberly Sue Bird's ("Plaintiff") complaint against Defendant Wells Fargo Bank ("Defendant"), which was removed to this Court on August 1, 2016. Plaintiff was terminated from Defendant's employment on May 6, 2014. Plaintiff alleges that Defendant discriminated against her because of her age and gender, and additionally breached Plaintiff's employment contract. Defendant claims that "Plaintiff was terminated after she failed to comply with Defendant's Information Security Policy and Guidelines and it was determined that he conduct resulted in the theft of private and confidential business information." (ECF No. 6, p. 2).
This order provides direction regarding the scope and timing of discovery in this matter. As described extensively on the record during conferences on March 1, 2017 and March 30, 2017, discovery in this case has broken down. The parties have been unable to meaningfully meet and confer and reach any agreement on the scope of discovery, long after such matters should have been resolved. Accordingly, the Court will order discovery take place as described in this order in order to move this case forward as efficiently as possible.
The Court and parties held a scheduling conference in this case on October 13, 2016. In advance of the scheduling conference, the parties submitted a Joint Rule 26(f) report jointly proposing a deadline for non-expert discovery cut-off of March 6, 2017. (ECF No. 6, p. 4). In that statement, the parties indicated they "do not anticipate this action will involve significant electronic discovery issues. However, the parties have both agreed to preserve any relevant electronically-stored information. To the extent Plaintiff seeks discovery of emails, the parties will meet and confer on proposed search terms and custodians." (ECF No. 6, p. 4). Following the conference, the Court set the deadline for non-expert discovery for March 6, 2017 as requested. (ECF No. 8)
The Court received the first indication that all was not well through the parties' Joint Mid-discovery conference report, dated February 14, 2017, just a few weeks before the non-expert discovery cut-off. (ECF No. 16). Plaintiff asserted in that joint statement that it still intended to take the depositions of nine witnesses, and was "drafting a met [sic] and confer letter to Defendants concerning their responses and the scope of ESI discovery." Defendants asserted that "Plaintiff has not yet noticed any deposition. Plaintiff has not yet reached out to Defendant to meet and confer regarding the scope of ESI discovery." Plaintiff also indicated that Defendant was refusing to provide any information regarding the person who replaced Plaintiff in her job. The Court held a mid-discovery status conference on February 21, 2017 as previously set and scheduled a more extensive discovery conference on the record for March 1, 2017 to hopefully resolve any open issues regarding the scope of discovery.
During the March 1, 2017 conference, the Court heard argument and provided detailed guidance on the scope of discovery on the record for approximately 90 minutes. The Court then ordered the parties to meet and confer regarding the scope and terms of ESI discovery with the help of the Court's guidance over the following two weeks. The Court requested a status report on March 15, 2017 as well as proposals for a new schedule to permit discovery to be completed in a timely manner. (ECF No. 19) The Court also set a hearing on any outstanding discovery motions for April 14, 2017.
According to documents filed with the Court (ECF No. 20-1), on the afternoon of that conference, March 1, Defendants wrote to Plaintiff to confirm that Plaintiff's deposition would take place one week after Defendants produced documents regarding five loans at issue in the case, certain text messages, and "Emails to/from Plaintiff that include certain custodians/key terms, which you have agreed to provide ASAP," and demanded a list of such terms from Plaintiff by close of business on March 3, 2017. Defendant concluded the correspondence by stating "If you breach the agreement and fail to provide the list by COB on Friday then our agreement regarding the documents discussed above is null and void ab initio and we will once against take these issues to Judge Grosjean and will move to compel Plaintiff's deposition and seek sanction." (ECF No. 20-1, p. 9).
Plaintiff sent Defendant a meet and confer letter later that day, March 1, 2017, (ECF No. 20-1), and another meet and confer letter on March 2, 2017 but did not receive a prompt response. On March 8, Defendant wrote to Plaintiff saying "I do not have this information now," "we will not be able to produce any ESI by March 10 or March 17," and claiming that "the parties have nearly a month to resolve outstanding discovery issues and file briefing regarding a MTC." (ECF No. 20-1, p. 6). It does not appear that any telephonic meet and confer took place.
The day before the joint statement on meet and confer was due with the Court, Plaintiff's counsel wrote to Defense counsel explaining that Defendant had not responded to Plaintiff's meet and confer efforts, and stating "Our understanding is that the Court intended the parties to have completed our meet and confer to the extent possible by this point. As this has clearly has [sic] not happened, we are concerned that we will not be in a position to comply with the Court's order in a timely manner." (ECF No. 20-1, p. 5). Defendant finally provided its "position with regard to ESI" on March 14, 2017 at 4:33 pm. (ECF No. 20-1, p. 3). Defendant's position included the following:
The parties filed a joint statement regarding discovery on March 16, 2017. (ECF No. 20) Far from reflecting the results of two weeks of meaningful meet and confer consistent with the Court's extensive guidance on the record, the 15-page statement revealed a continued lack of agreement on the scope of discovery and obstacle to even beginning the collection and review process. Among other things, the joint statement revealed to the Court:
The Court received further insight regarding Defendant's position in Defendant's formal discovery responses, which it requested at the hearing on March 30, 2017. For example, in response to Plaintiff's request for "ALL DOCUMENTS, COMMUNICATIONS OR ELECTRONICALLY STORED INFORMATION RELATING TO PLAINTIFF'S compensation, bonuses, and commissionable loans," Defendant agreed to produce Plaintiff's pay vouchers, offer letter, and compensation plan but stated "Defendant will not conduct a search for further responsive documents in the absence of an agreement with the demanding party as to the specific items requested, search terms, custodians, and temporal parameters of the search.. . . . Defendant retains its right to shift costs of any further search required to Plaintiff." In other words, Defendant took the position that it had no obligation to provide any electronic discovery responsive to Plaintiff's discovery requests unless and until there had been an agreement on all parameters with Plaintiff.
The Federal Rules of Civil Procedure "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). Furthermore, discoverable information "need not be admissible in evidence."
Rule 34 of the Federal Rules of Civil Procedure governs the production of documents. Fed. R. Civ. P. 34. Rule 34 permits a party to serve a request to provide, or permit inspection of, "any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form." Fed. R. Civ. P. 34(a). The responding party must serve responses and objections that include "for each item or category, . . . that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specific in the request or another reasonable time specified in the response." Fed. R. Civ. P. 34(b)(2)(B). Furthermore, unless otherwise stipulated or ordered by the court, documents and electronically stored information must be provided "as they are kept in the usual course of business" and specifically for electronically stored information, "a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." Fed. R. Civ. P. 34(b)(2)(E).
Federal Rule of Civil Procedure 26(g)(1) requires that an attorney sign every discovery response (among other documents) to certify that "to the best of a person's knowledge, information, and belief formed after a reasonable inquiry . . . with respect to a discovery request, response, or objection, it is . . . consistent with these rules and warranted by existing law . . . not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation . . . ." Fed. R. Civ. P. 26(g). "[T]he signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand." Fed. R. Civ. P. 26, Notes of Advisory Committee on Rules—1983 Amendment. The Advisory Committee notes provide additional guidance:
It is well-settled that the party opposing discovery bears the burden of demonstrating why disclosure should be resisted.
In federal litigation, the parties to a case are required to confer "as soon as practicable" and in any event "at least 21 days before" before the initial Rule 16 scheduling conference to
Pursuant to Federal Rule of Civil Procedure 16, "[a]t any pretrial conference, the court may consider and take appropriate action on the following matters: . . . controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37." Fed. R. Civ. P. 16(c)(2)(F).
As discussed extensively on the record at the March 30, 2017 conference, discovery in this case has completely broken down. Per the parties' own request, non-expert discovery was supposed to be completed by March 6, 2017. That date has come and gone and yet the parties are still arguing over the scope of discovery. Defendant is taking the position that it need not provide any electronic discovery until there is agreement on the scope of production. Defendant also disclosed for the first time on March 14 that it had purged Plaintiff's email inbox and made no commitment to resurrect such files. Defendant has claimed it needs 6-8 weeks to even retrieve potentially relevant material. Defendant provides no timeline for production. The parties also cannot agree on a meaningful schedule. It is as if this case has not yet had its rule 26(f) conference rather than past the date of non-expert discovery cut-off.
Both parties shoulder some of the blame for this breakdown. After all, on October 6, 2016, the parties submitted a discovery plan that indicated that they "do not anticipate any issues relating to the timing, sequencing, phasing or scheduling of discovery." (ECF No. 6, p. 4). The parties further indicated that they did "not anticipate this action will involve significant electronic discovery issues," and that they "have both agreed to preserve any relevant electronically stored information." The Rule 26(f) conference was either not meaningfully conducted or misrepresented to the Court. Additionally, both parties have taken extreme positions regarding the scope of discovery. For example, Plaintiff has requested such overbroad topics as "All SMS, text messages, and emails between Plaintiff and you [Defendant]." Whereas Defendant even refused to produce information about the demographic person replacing Plaintiff in her role. Given these sort of positions, it is not surprising that the parties have been unable to reach agreement.
That said, the Court is particularly troubled by Defendant Wells Fargo's approach to discovery in this case. Defendant has taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms. This position has led to the predictable conclusion that discovery is completely stalled and Defendant is not close to meeting its discovery obligations. Defendant also withheld information about Plaintiff's inbox until after the initial discovery cut-off. It both fails to provide any date certain for production and will not extend the schedule a reasonable amount of time. It continues to threaten to have Plaintiff pay its costs without any legal justification. The Court also takes issue with the tone of Defendant's communication, such as telling Plaintiff that Defendant's agreement to produce certain documents will be "null and void ab initio" and that Defendant will request sanctions if Plaintiff did not provide certain search terms by the deadline imposed by Defendant. (ECF No. 20-1, p. 9) Such dialogue is not professional and not a good faith attempt to meet and confer.
The Court's attempts to resolve this discovery dispute using the normal process has also failed. When the Court learned that discovery had fallen so far behind, it scheduled a telephonic conference to discuss all discovery disputes and provide informal guidance to assist the meet and confer process. It spent 90 minutes on the record discussing the proper scope of discovery and instructed the parties to meet and confer with that guidance and report two weeks later. It set a date a month after that for any discovery motions, with the thought that the scope would be agreed quickly and any deficiencies in production could be resolved in the next month.
The Court now knows that, after threatening Plaintiff with (unsupportable) sanctions, Defendant did not provide any substantive meet and confer on the scope of discovery until the day before the Joint Statement was due. Defendant then asserted a right to further narrow the scope in an additional 6-8 weeks. Neither party referred in any way to the Court's guidance on the scope of discovery. Instead, the parties just submitted their very detailed and opposed viewpoints to the Court without proposing any constructive way forward.
Thus, one month past the first deadline for non-expert discovery, there is still no agreement on the scope of discovery. The parties are unable to meet and confer in a professional, meaningful way. Defendant has no deadline to complete production and there is no operative schedule in place.
The Court has also heard from the parties on three separate conferences. (ECF No. 17, 18, 22) It has received a detailed joint statement of discovery disputes. (ECF No. 16) It has received and reviewed Plaintiff's discovery requests and Defendant's responses and objections. It has received and reviewed substantial meet and confer correspondence.
Accordingly, as discussed at the conference, the Court will issue the following order under its authority in Rule 16 regarding the scope of discovery.
Accordingly the Court orders Defendant to produce the following documents
Defendants shall immediately design and implement a discovery plan to diligently and in good faith produce documents consistent with this order and schedule its production on a rolling basis to conclude no later than June 1, 2017. It is Defendant's obligation to produce responsive documents consistent with the discovery rules. Defendant need not re-produce any document that it has already produced to Plaintiff.
Within two (2) weeks from this order, Defendant must disclose the scope of its search including any search terms, custodians or other limitations. The parties shall not engage in further meet and confer regarding the scope of production. To the extent that Plaintiff believes that Defendant's searches do not comport with Defendant's discovery obligations, Plaintiff may file a motion for sanctions four (4) weeks from today, i.e., April 28.
Additionally, within 7 days of this order, Defendant shall produce any policies regarding the destruction of employee emails, including current, former, and terminated employees, including the policy Defendant contends authorized the destruction of Plaintiff's email box. Plaintiff has leave to file a motion for sanctions under Federal Rule of Civil Procedure 37(e) to the extent that Defendant is unable to restore or replace Plaintiff's email box.
Consistent with Rule 26(b)(5), Defendant shall provide a privilege log within 14 days of this order regarding any documents withheld as privilege to date. Additionally, any produced document that has a redaction shall be included on the privilege log. Defendant shall provide a supplemental privilege log with any subsequent production that redacts or omits privileged documents within 14 days after the production that omitted such privileged document.
Electronically stored information shall be produced in a format that extracts the text and preserves the metadata from native files. The Court will issue a revised schedule for the remainder of the case shortly.
IT IS SO ORDERED.
