In Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017), a federal court in an employment discrimination matter denied the plaintiff’s motion to compel discovery, finding that the defendant’s reliance on an employee involved in the litigation to self-select relevant documents was appropriate under the circumstances

In this matter, the plaintiff filed a motion seeking to compel the defendant to conduct additional searches for electronically stored information (“ESI”). In support of the motion, the plaintiff expressed “concern” that the defendant was potentially withholding relevant documents that should have been produced in response to the initial discovery protocol. The plaintiff’s concern was based solely on the fact that the defendant’s counsel (both in-house and outside counsel) relied on an employee directly involved in the underlying suit to search her email for responsive documents.

The defendant, however, justified its approach by arguing that its in-house: (1) issued a timely and detailed litigation hold to potential custodians of ESI, directing the preservation of any records and documents that might pertain to the plaintiff’s claims; (2) gave instructions to the ESI custodians regarding the nature of the searches to be performed and the specific search parameters; (3) explained the importance of a thorough search to the ESI custodians; and (4) provided guidance when questions arose during the search.

The court accepted the defendant’s search process based on the close involvement of counsel, as well as counsel’s “sworn representation that all responsive materials have been disclosed.” The court also noted that the plaintiff had not provided any supportive case law or evidence for its allegations, dismissing them as “mere speculation.” For these reasons, the court held that an additional searches were not required and denied the plaintiff’s motion.

In the continuing battle to control escalating litigation and e-discovery costs, this decision provides some measure of protection to litigants who choose to rely on the custodians themselves to locate and retrieve relevant documents. However, as the decision suggests, litigants who rely on self-selection by custodians must take appropriate precautions to ensure that a thorough and complete search is performed, including close oversight by counsel. Also, this approach may not be advisable in all situations or for all custodians – especially in those situations where the custodian has strong incentive not to produce relevant information.