Court Orders Parties to Confer After Defendant Conducts Unsupervised Self Collection: eDiscovery Case Law

eDiscovery Assistant has once again written about an interesting case, with an opinion from a very eDiscovery savvy judge (and a nice guy to boot) – Florida Magistrate Judge William Matthewman.  And again, in doing so, they have saved me the trouble of having to find a case to write about.

In E.E.O.C. v. M1 5100 Corp., No. 19-cv-81320-DIMITROULEAS/MATTHEWMAN (S.D. Fla. July 2, 2020), Judge Matthewman granted in part and denied in part the plaintiff’s Motion to Compel a Privilege Log, Better Discovery Responses, and Fees, ordering the parties to “fully confer in good faith on or before July 9, 2020, and attempt to agree on relevant ESI sources, custodians, and search terms, as well as on a proposed ESI protocol and all other related discovery issues.”  Judge Matthewman also granted the plaintiff’s request for the defendant to respond to a specific interrogatory and request for production, but reserved ruling on the plaintiff’s request for an award of attorney’s fees and costs incurred in filing its motion and denied other issues (including the privilege log) as moot because the parties resolved those issues themselves.

In this EEOC case regarding age discrimination, at specific issue was the fact that defense counsel allowed two employees of the client to identify and collect ESI to respond to requests for production with no oversight from counsel at all. Despite no knowledge of the process the client undertook to gather information (which resulted in only 22 pages of documents produced), counsel signed the responses to the RFP’s in violation of FRCP Rule 26(g).

Judge Matthewman stated that “[t]his issue of “self-collection” of discovery documents, and especially of ESI, by Defendant in this case, without adequate knowledge, supervision, or participation by counsel, greatly troubles and concerns the Court.”  Ultimately, with five months remaining before the discovery cut-off, Judge Matthewman gave the defendant “one last chance to comply with its discovery search, collection and production obligations.”  He then also ordered “the parties to further confer on or before July 9, 2020, to try to agree on relevant ESI sources, custodians, and search terms, as well as on a proposed ESI protocol.”

You can read more about the case on the eDiscovery Assistant blog here, which has a link to the actual case opinion from their site and analysis of the case.  Since I typically write Monday morning posts on Sunday nights, they’ve once again saved me a lot of time!  I could get used to this!  😉

Also, just a reminder that this Wednesday, ACEDS will conduct the webinar Seeing 20/20: Reasonable and Proportional Discovery in 2020 at 1pm ET (noon CT, 10am PT).  Come join Mandi Ross of Prism Litigation Technology, Martin Tully of Actuate Law and me where we’ll discuss challenges with “right-sizing” discovery proportionally and defensibly, what can be leveraged from the rules and relevant case law regarding proportionality, and what best practices can be deployed for quick evaluation of potentially relevant custodians and data sources.  Don’t miss it!

So, what do you think?  Did the Court go too easy on the defendants for failing to ensure attorney supervision of the collection process or was the decision appropriate given that the discovery deadline is still months off?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

3 comments

  1. I see this as a fair result. If I understood the timeline correctly, they were still within the discovery window, and therefore there was time to resolve their issues reasonably. Again, I am pleased to see that Courts are insisting that attorneys discuss these differences and try to reach an agreement.

  2. Thanks, Mark and Darius! Judge Matthewman did a great job of stressing the importance of the issue at hand, while giving the parties the impetus and time to work it out on their own. Always the preferable solution if possible.

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