Finding Defendants’ Proposed Search Protocol “Fundamentally Misguided,” Court Creates Own and Orders Search of “Any Depository” that May Contain the Information Sought

D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. Oct. 2008)

In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery.  Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested.  At the hearing, a representative of the defendants explained that plaintiff’s computer was “scrapped after he decided that it could not be used and also searched for items requested by plaintiff.”  A representative also testified regarding additional searches performed to respond to plaintiff’s requests and explained the “Legato system,” a server which held a back up of plaintiff’s mailbox from 2004, made under order of the Justice Department in a separate matter.  Defendants agreed to allow plaintiff’s expert to perform an in-person search of their servers, but the parties were unable to agree upon a protocol to guide that search.

Following the hearing, defendants submitted an 11 point protocol for approval.  The plaintiff objected to the proposed protocol, but did not provide her own.  Defendants’ protocol proposed to re-create the searches previously conducted with any additional searching to be at the discretion of defendants who reserved the right to decline if they felt the search would “jeopardize the functioning of the system, or otherwise impact normal business operations.”  Defendants’ proposal also allowed them to refuse to restore any emails that were located by searching.  Finding defendants’ proposal “highly technical,” “highly restrictive,” and “fundamentally misguided,” the court created the protocol itself.

a. Scope of Search

Turning first to the scope of the search, the court gave plaintiff’s expert the authority to search any depository he believed may contain relevant information and indicated its confidence that “[the expert] will take his quasi-judicial responsibility” to conduct those searches in good faith seriously.  The court also noted that if the expert were wrong about whether a depository contained relevant information, “the worst that can happen is that he will have wasted whatever time it took to search that particular depository” and that it would “surely…take less time and money than more litigation about the scope of search.”

b. Time Limitations

Addressing time limitations, the court ordered the parties to agree upon dates for searching and ordered that the expert be given up to three 12 hour days to complete his searches with the option for counsel to confer with the judge by telephone in the event additional time was needed.

c. Persons Present, Credentials, Commands

Regarding the persons to be present and who would actually carry out the searches, the court ordered that defendants need not provide access credentials directly to the plaintiff but that the representative for the defendant present at the search must have full credentials for access and assist plaintiff “without qualification or obstruction.”  Additionally, the court ordered that defendants’ representative would carry out any system commands with plaintiff’s expert observing and that any disputes would be resolved by the court.

f. Production

Specifically citing “trust” in plaintiff’s expert, the court ordered him to copy the results of his search onto DVD to be provided under seal to the court noting that he functioned as a “quasi-judicial officer” for that purpose.  The expert was ordered to provide a second copy of the results to defendants’ counsel who would have three weeks to review them and create a privilege log for documents to be withheld.  The results were not to be provided to the plaintiff until the court ordered otherwise.

g. System Overview

Defendants proposed protocol suggested that prior to beginning any searches their IT representative perform an “overview of the Legato system” and that “after this initial review of system functionality the process followed for the previous data production in this matter will be discussed.”  The judge noted that plaintiff had not objected to this suggestion but admitted, “I am afraid that I do not know what an ‘initial review of system functionality’ means in this context and what is to be discussed.”  Nonetheless, the court expressed its expectation that defendants would ensure plaintiff’s expert understood how the system worked, what searches it could run, and how the results would be produced, and that defendants would answer any questions the expert might have.

h. Prior Searches, New Searches

The court noted that the parties agreed to re-run any previous searches and to compare the old and new results.  Regarding new searches, the court ordered that defendants could refuse any searches it believed would “jeopardize the system or have a significant negative impact on business functioning” with the knowledge that the court might assess the validity of those claims.  The court further recommended consideration of performing the searches during “off-hours” to reduce any potential interference with daily business.

i. Imaging

Upon defendants objection the court agreed not to order the Legato server to be imaged but agreed that in the event that plaintiff’s expert decided it necessary, the court would resolve the matter by phone.  Other servers and hard drives were to be copied and retained by the expert “pending further order.”

j. Email Restores

Over defendants’ objections, the court ordered that newly discovered information should be restored, if necessary, to a “reasonably usable” state “capable of being read on a computer using commonly available word processing software…and without the necessity of having to buy other software…”  The court assumed that the search would also yield metadata that would be preserved upon restoration for later use.

k. Cost

Defendants offered to pay up to $10,000 but plaintiff argued that defendants should bear the whole cost.  Noting the Federal Rules presumption that the producing party will bear the costs, the court nonetheless indicated an unwillingness to give plaintiffs a “blank check” where they had not provided an estimate of the costs associated with the requested searching and had “refused to be limited by cost.”  Thus, the court ordered plaintiff’s expert to provide an estimate if he anticipated the cost at greater than $10,000, in which case the court would re-visit the issue.

Finally, addressing defendants’ request for leave to designate an additional expert, the court denied the request in light of defendants’ failure to present any doubt as to the professionalism of plaintiff’s expert.