DEFENDANT’S COLLECTION AND SEARCH OF ITS OWN EMAILS FOUND SUFFICIENT

In Mirmina v. Genpact LLC,[1] plaintiff sought discovery of emails in which the defendant made derogatory statements about plaintiff. Defendant’s attorneys relied upon their client’s review of her own emails (“self-collection”) to locate responsive documents, as shown in this email exchange between counsel:

Defendant’s counsel wrote:

In any event, to be clear, Ms. Saxena provided for our review and processing all emails between her and Mr. Mirmina as well as any other emails and documents relating to her concerns about Mr. Mirmina’s performance, the PIP and/or the termination decision. To the extent these documents were non-privileged and responsive to the initial discovery protocols or your requests for production they were produced.

Plaintiff’s counsel responded:

So, am I to understand that you relied on Ms. Saxena to locate responsive documents?  Do you really think if she wrote an email that she thought Mr. Mirmina worked 15 hours a week that she would turn it over to you? We want an objective search done that does not rely upon the “good faith” of the person who made defamatory remarks regarding Mr. Mirmina.

When defendant Genpact disagreed, plaintiff filed a motion to compel, arguing that the discovery rules required something more from counsel than reliance upon the client’s good faith in producing emails. Plaintiff sought an order requiring defendant to conduct an objective search for emails based on search terms agreed upon by both parties.

Defendant’s opposition began by acknowledging that:

(1)          a litigation hold was the first step (preservation);

(2)          compliance with the hold must be monitored;

(3)          attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents; and

(4)          attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.[2]

Defendant argued it satisfied these requirements by submitting (1) a declaration of Genpact’s in-house counsel that he properly issued a litigation hold upon receiving the charge of discrimination by plaintiff; and (2) a verification that he had coordinated a thorough search of all emails and documents relating to, concerning, or reflecting Genpact’s decision to terminate Mirmina and provided them to outside counsel for production.

Defendant then argued that plaintiff’s motion was based entirely on supposition that Genpact had concealed phantom “smoking gun” documents, without any evidence supporting the allegation.[3]

THE COURT’S ANALYSIS

The court began its analysis by setting forth today’s standards:

A party’s discovery obligations do not end with the implementation of a “litigation hold” — to the contrary, that’s only the beginning.

Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.

Proper communication between a party and her lawyer will ensure (1) that all relevant information (or at least all sources of relevant information) is discovered, (2) that relevant information is retained on a continuing basis; and (3) that relevant non-privileged material is produced to the opposing party.[4]

“Responsibility for adherence to the duty to preserve lies not only with the parties but also, to a significant extent, with their counsel.”[5]

Indeed, for the current “good faith” discovery system to function in the electronic age, attorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents.

Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.[6]

The court found that the steps taken by the company’s in-house counsel and litigation counsel to coordinate and supervise the search for electronically stored information (ESI) were proper and sufficient for ensuring a comprehensive search was conducted.  Since plaintiff submitted no evidence supporting the contention that defendant had withheld communications, the defendant was not required to conduct an additional search for ESI.

THE TAKE-AWAY FOR IN-HOUSE COUNSEL AND THEIR LITIGATION COUNSEL

Here are the steps the court found proper and sufficient in Mirmina v. Genpact LLC:

(A)          The company’s in-house counsel—

(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 plaintiff’s claims;

(2)          gave instructions to the ESI custodians regarding searches and 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.

(B)          The company’s in-house counsel then affirmed that he forwarded the results of the searches to outside counsel, who in turn conducted a review for processing and production.

(C)          The company’s outside counsel represented that a comprehensive search was conducted for all documents subject to production under the Initial Discovery Protocols, and that all responsive documents were disclosed to the plaintiff.

THE TAKE-AWAY FOR PARTIES SEEKING TO COMPEL A SEARCH OF ELECTRONIC DOCUMENTS

A party seeking to compel a search in the face of representations that all documents have been produced must support the motion with evidence, and not simply surmise.

[1] Mirmina v. Genpact LLC (D.Conn. July 27, 2017, No. 3:16CV00614(AWT)) 2017 U.S.Dist.LEXIS 117412.

[2] Bagley v. Yale University, 318 F.R.D. 234, 239 (D. Conn. 2016), and Friedman v. SThree PLC, No. 3:14cv278, 2016 WL 7374546, at *3 (D. Conn. Oct. 24, 2016); see also citing Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 290 (S.D.N.Y. 2009) (quotation marks and citation omitted), and Fed. R. Civ. P. 26(g) (requiring that counsel make a “reasonable inquiry” before certifying that a discovery response is “is complete and correct as of the time it is made”).

[3] Vaigasi v. Solow Mgm’t Corn., No. 11 Civ. 5088, 2016 WL 616386, at *16 (S.D.N.Y. Feb. 16, 2016

[4] Mirmina v. Genpact LLC (D.Conn. July 27, 2017, No. 3:16CV00614(AWT)) 2017 U.S.Dist.LEXIS 117412, at *3-4, citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

[5] Mirmina, supra, quoting from Electrified Discounters, Inc. v. MI Techs., Inc., No. 3:13CV1332(RNC), 2015 U.S. Dist. LEXIS 64950, 2015 WL 2383618, at *2 (D. Conn. May 19, 2015).

[6] Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 437-38 (S.D.N.Y. 2010); see also Fed. R. Civ. P. 26(g) (requiring that counsel make a “reasonable inquiry” prior to certifying that a discovery response is “complete and correct as of the time it is made”).

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