Petcou v. C.H Robinson Worldwide, Inc., Case No. 06-2157 (N.D. Ga. February 25, 2008)

February saw no less than six decisions address details of the burden imposed on a responding party to search and produce relevant documents. One of them was discussed recently here. Each offers valuable insights on how counsel and parties should conduct themselves when making and responding to document requests where ESI is concerned. Over the next few days, I will review these decisions and point out what I perceive to be trends and what we can learn from them.

In Petcou v. C.H. Robinson, the plaintiffs in a sexual harassment case sought production of “documents relating to or evidencing the presence of pornography” in two branch offices, “including but not limited to email….” In their motion to compel, plaintiffs narrowed the request to “documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.” The court acknowledged that it was unlikely that emails sent during this period were still on defendant’s exchange servers. Deleted emails are unavailable after eight days and emails of departed employees are deleted immediately. The court considered the cost evidence submitted by defendant to restore backup tapes and held that defendant had successfully met its burden of establishing that deleted emails are not reasonably accessible. In the court’s consideration of good cause, the case gets interesting.

Magistrate Judge Gerrilyn G. Brill began her analysis observing that plaintiffs’ discovery requests were extremely broad, unlimited by time, sender, or recipient. (Emphasis mine). The court seemed particularly concerned about the burden of relevance review imposed on defendant, and somewhat disturbingly, did not see the need to produce evidence that corroborated the plaintiffs’ position in the case.

Even as later revised by Plaintiffs, the requests would require a search of all emails of all of employees in the [two] branches for a six-year period. Moreover, it is unclear how Defendant would determine whether e-mails were “relating to or evidencing the presence of pornography” or were “of a sexual or gender derogatory nature” without examining the content of each and every e-mail and without making judgments about what constitutes pornography. Finally, although the e-mails would corroborate Plaintiffs' testimony regarding the prevalence of pornography in the workplace, they would provide little, if any, relevant information that Plaintiffs themselves have not already provided.

As a consequence, the court found that the burden or expense of the proposed discovery as a whole outweighs its likely benefit. Nonetheless, on its own, the court narrowed the permissible discovery request to the following two categories of documents:

  1. undeleted e-mails (if any), sent prior to 2007, by a current employee who has been specifically named by Plaintiffs as having had sexually explicit material on his computer; and 
  2. any e-mails with sexual content sent or received by any of Plaintiffs' former co-workers of which Defendant is currently aware and has retained.

To summarize, if the plaintiffs specifically name an employee who has had sexually explicit material on his computer, plaintiffs are entitled to obtain all of that person’s undeleted email. And, if defendant is aware of any emails with sexually explicit content sent or received by a former co-worker of plaintiffs, it must be produced. The driving factor here seems to be avoidance at all costs of the burden of having to actually review the emails to determine relevance.

Plaintiffs also sought sanctions for spoliation based upon defendant’s failure to curtail its normal document destruction schedule “even after an EEOC complaint alleging company-wide sexual harassment been filed in June of 2001.” The court denied the motion because:

[T]he plaintiffs in that case did not request company-wide preservation of e-mails, nor did they provide Defendant with the names of individuals in Atlanta whose e-mails should be preserved. It does not appear that Defendant acted in bad faith in following its established policy for retention and destruction of e-mails.

The court essentially said that if you want them to stop destroying documents, you’ve got to tell them to stop and you better identify what documents you want preserved. I suspect that we will be seeing this type of analysis increasingly in cases where a party is seeking boatloads of email. To be sure, the court went on to basically say that this stuff wasn’t all that relevant given the nature of the case:

Plaintiffs' lawsuit is primarily based on offensive comments and images on coworkers' computer screens, as opposed to e-mails the Plaintiffs themselves received. If this case proceeds to trial, Plaintiffs will be able to describe what they heard and saw. In addition, Plaintiffs have the computer generated reports of attempts made by Defendant's employees to access adult websites during the relevant time period, which partially corroborates their testimony about offensive images on computer screens.

The court found that defendant’s culpability was low and the resulting prejudice to plaintiff relatively minor “given other available evidence.”

While the rationale underlying the court’s holdings makes eminent sense, some carefully crafted discovery requests that allowed relevant email to be identified through word searches may well have won the day. This will not be the last court that looks at the burden of reviewing emails and recognizes that skillful drafting can avoid a needless expenditure of time reviewing for relevancy. Expect to see courts taking a much harder look at document requests and denying motions to compel where excessive relevancy review would be required.

The necessity of serving a preservation letter at the earliest possible date, with as much specificity as possible, hardly needs stating. Particularly in large companies with multiple offices, the courts are starting to take a hard look at preservation obligations and recognizing that the party seeking to impose a legal hold as an obligation of its own to notify the opposing party as to what should be preserved.

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