Court Denies Plaintiff’s Motion to Compel
In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails. The Court based its decision a number of important factors:
- Defendant Genpact’s in-house counsel produced an affidavit outlining the process used to preserve and search potentially responsive emails;
- Genpact’s in-house counsel supervised the preservation and search process;
- Plaintiff Mirmina was unable to identify any authority stating that self-identification was improper;
- Mirmina was also unable to identify any emails that Genpact had not produced and was merely speculating that Genpact’s email production was deficient.
Scott Mirmina, a former Genpact recruitment manager, sued his previous employer, a professional services firm, alleging age, race, and gender discrimination.
In May of 2017, Plaintiff Mirmina filed a Motion to Compel additional responses to specific discovery requests. This motion was denied in June 2017, except for materials described in Genpact’s initial disclosures that had not yet been produced.
In July of 20017, Mirmina filed another Motion to Compel asking the court to force Genpact to produce additional responsive emails. Mirmina stated that he was “concerned” that Genpact had withheld responsive emails and that Genpact’s search for responsive emails was inadequate because an employee directly involved with the underlying issues in the litigation had self-identified potentially responsive emails.
The Court denied Mirmina’s Motion to Compel after Genpact’s counsel described the process used to identify responsive emails. Specifically, Genpact’s in-house counsel averred that they:
- issued a timely and detailed litigation hold to potential ESI custodians;
- provided instructions to the custodians on how to search for potentially responsive emails;
- provided custodians with specific search parameters to identify potentially responsive emails;
- explained importance of thoroughly searching for potentially responsive emails; and
- provided guidance to custodians when they had questions about the search process.
The Court also determined that Mirmina’s allegations that responsive emails had not been produced was based on mere speculation. The court held that this speculation was insufficient to require Genpact to conduct additional searches for potentially responsive emails.
Self-identification of potentially responsive documents by custodians is not usually recommended. There are obvious risks involved, including custodians not wanting to produce documents that could be damaging for themselves or their employer. Further, there are risks involved in having custodians determine what may or may not be responsive to document requests. However, the Court’s decision in this matter describes a scenario in which self -identification of emails may be defensible.
The Court indicated that the primary driver for denying Mirmina’s Motion to Compel was the affidavit provided by Genpact’s in-house counsel detailing Defendant’s document identification and preservation process. The most important practical takeaway from the Court’s ruling was that self-identification can be defensible, so long as a rigorous process is followed and documented. This process includes drafting a timely and detailed litigation hold notice, providing instruction to custodians on how to identify potentially relevant documents, and answering questions that custodians may have throughout the process.
Finally, the Court made clear that purely “speculating” that an opposing party’s production is deficient is not enough to compel additional searches or document productions. In order to compel an additional search for communications, a moving party must provide evidence to support its claim of a deficient production.