Court Sets Hearing on Plaintiffs’ Proposed Email Search Protocol and Requests Additional Information

Apsley v. Boeing Co., 2007 WL 163201 (D. Kan. Jan. 18, 2007)

In this employment discrimination case, plaintiffs moved to compel further responses and production of information from the defendants, and also asked the court to rule on plaintiffs’ email search protocol. Plaintiffs sought to compel Boeing and defendant Spirit Aerosystems to produce emails under the following criteria:

Covered Individuals:

1. all individuals involved in the decision making process of Project Lloyd;
2. all individuals involved in the decision to select the Wichita, Tulsa, and McAlester facilities for sale.

Time Period: 

1. January 1, 2000.

Scope: 

1. e-mail transmitting spreadsheets regarding the lay-off/no hire decisions; 
2. e-mail transmitting reports/studies/surveys regarding the costs of pensions and the age of the workforce at Boeing; 
3. e-mail about lay-off/no hire decisions; 
4. e-mail transmitting lay-off instructions or guidelines and comments regarding such instructions or guidelines; 
5. e-mail containing the following search terms:

a. Project
b. Lloyd
c. Retirement
d. ERISA
e. Discrimination
f. Age
g. Lay-off
h. Lay off
i. Layoff
j. Benefit
k. Onex
l. Spirit
m. Geezer
n. Retire
o. Pension
p. Old
q. Midwestern Aircraft
r. Healthcare
s. Health care

Defendants opposed the motion to compel the email materials, arguing that the request was overly broad and unduly burdensome. In support of its objection, Boeing explained the process necessary to determine the location of emails and the process for organizing and actually searching the files after the location of the email data was identified. Boeing estimated that it would take a knowledgeable team of computer staff at least five hours per employee to locate and retrieve emails stored on centralized servers. For users who stored email in separate files on their respective hard drive or portable storage devices, Boeing estimated that the search time per employee would exceed one day. Boeing also argued that the number of individuals “involved in the decision making process” was large, and an unknown number of persons had multiple email addresses and encrypted their email messages. Boeing also complained that the use of relatively common terms would produce a large volume of email messages having nothing to do with the issues in this case.

Spirit’s objections were similar to the arguments asserted by Boeing, but because of the variety of computer resources Spirit had used over the years, the email search was expected to be more complex.

In reply, plaintiffs argued that the defendants’ claimed burden was not undue, and that the benefits plaintiffs expected to garner from the email search vastly outweighed the burdens. Plaintiffs also argued that defendants had failed to show undue burden because (1) the number of individuals with email on their individual hard drives was unknown; (2) the number of files was unknown; and (3) the number and size of the email for targeted individuals was unknown.

The court found that plaintiffs’ position on the “unknowns” was wrong: “It is precisely because there are ‘unknowns’ that plaintiffs’ request imposes a greater burden on defendants.” For example, the court noted that because there are variations in the storage locations for email, defendants were tasked with individually questioning each email user concerning their respective practices so that all email sources would be identified for searching.

However, the court found that the possible benefits of the discovery raised a more difficult question because of the expansive nature of plaintiffs’ email requests and the number of email users involved. Thus, in order to better evaluate the discovery request, the court set the matter for hearing on Friday, January 26, 2007. It ordered the parties, at a minimum, to address the following questions:

1. How many persons are covered by plaintiffs’ e-mail search protocol? 
2. Although Boeing has estimated the amount of hours to locate and search for e-mail, what is the estimated cost? 
3. Exactly what are the “benefits of discovery” that plaintiffs reference? 
4. Does the number of search terms materially increase the cost? 
5. Should the costs of electronic discovery be borne by plaintiffs? 
6. Is there a more efficient method for discovery than electronic searches? 
7. What computer resources or expertise did plaintiffs rely on in formulating a search protocol? If the information is produced, how will plaintiffs’ process the data?