Hard to believe I was discussing a case related to search terms from this judge just a couple of days ago. In this case, that same judge ruled on search terms again, but ruled slightly differently this time.
In Murray v. City of Warren, No. 19-13010, (E.D. Mich. Aug. 17, 2020), Michigan Magistrate Judge R. Steven Whalen granted the plaintiff’s Motion to Compel Discovery and Motion to Compel Defendant’s Answers to Plaintiff’s Second Request to Produce in part and denied it in part, including his ruling regarding search terms that “some of the designated search terms are evidently relevant” while, for others, “the parties should follow the procedure set forth” in McMaster v. Kohl’s Dep’t Stores, Inc., “and if they cannot agree on additional, appropriately narrowed terms, will share in the cost of an expert to assist them.”
Case Background
In this employment discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the plaintiff (who was the City of Warren’s first African American Diversity and Inclusion Coordinator) alleged racial discrimination by the city’s mayor and other department heads. Once again, Judge Whalen ruled on a variety of discovery disputes.
Judge’s Ruling
Other Complaints of Discrimination: The plaintiff sought information about previous complaints of discrimination against the defendants, whether or not they resulted in a finding of misconduct or sanction. Judge Whalen ruled that “Any complaints of discrimination that resulted in an official finding of misconduct or the imposition of any discipline or sanction, regardless of the type of discrimination claimed, is discoverable.” But, he also ruled that “as to complaints that did not lead to any discipline or adverse action, Plaintiff is entitled only to those that involve race.”
Personnel Files: Noting that “Plaintiff is correct that there is no general privilege that attaches to personnel files”, Judge Whalen also stated: “At the same time, there is a non-privileged privacy interest that attaches to personnel files.” As a result, Judge Whalen ruled: “Therefore, as discussed in the preceding section, Plaintiff is entitled to any information within the personnel files relating to complaints or allegations of racial discrimination or harassment, regardless of whether they led to disciplinary action, and including responses to third-party claims of racial discrimination or harassment.”
Communications, Emails, and Phones: Noting that a request for all emails from accounts belonging to specific parties in the case was “overly broad, and would likely include a significant amount of irrelevant information”, Judge Whalen instead focused on another request that “appropriately seeks to limit the request with the use of relevant search terms”. While referencing his decision in McMaster (link above), where he stated he had “no interest in going where angels fear to tread” and directed the parties to confer regarding the search terms (with the assistance of an expert if necessary), Judge Whalen in this case stated: “Given the claims in the present case, some of the designated search terms are evidently relevant. Emails referring to the Plaintiff (and containing the terms ‘Greg’ or ‘Murray’) are relevant and must be produced. Also, emails containing the terms harass!, chimpanzee!, black!, or n***** are relevant. Defendants will apply those search terms and produce any emails containing those terms, subject to claims of privilege and production of a privilege log. As to any other terms, the parties will follow the procedure set forth in McMaster, and if they cannot agree on additional, appropriately narrowed terms, will share in the cost of an expert to assist them.”
Judge Whalen, calling the plaintiff’s request for examination of the mayor’s and police commissioner’s cell phones “his most audacious request”, denied that request, stating that “Plaintiff has made no predicate showing that an examination of this breadth would be likely to turn up relevant information”.
Tax and Payroll Records of Plaintiff: Stating that the plaintiff’s request for tax records relating to his employment was “not burdensome, and in fact should be quite easy for the City to produce”, Judge Whalen granted those plaintiff requests.
So, what do you think? Should the judge have reverted to his decision in McMaster for all search terms disputed? Please share any comments you might have or if you’d like to know more about a particular topic.
Also, just a reminder that, On Tuesday, October 6th, EDRM will host the webcast Important eDiscovery Case Law Decisions for October 2020 at 1pm ET (noon CT, 10:00am PT). In this webinar, Tom O’Connor, Mary Mack, Hon. Andrew Peck (Ret.) and I will discuss key cases related to discovery about discovery, the efficacy of terminating sanctions, considerations for audio/video discovery and disputes regarding search terms and technology assisted review (TAR), including this one. Don’t miss it!
Case opinion link courtesy of eDiscovery Assistant.
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This is a far more revolutionary ruling than might be apparent at first blush because it is the rare case where the Court finds that the mere occurrence of a search term in an information item defines relevance objectively, and the producing party is denied the right to assess relevance subjectively.
The Court found: “Emails referring to the Plaintiff (and containing the terms ‘Greg’ or ‘Murray’) are relevant and must be produced. Also, emails containing the terms harass!, chimpanzee!, black!, or n***** are relevant. Defendants will apply those search terms and produce any emails containing those terms, subject to claims of privilege and production of a privilege log.”
Yes, items can be withheld based on privilege BUT NOT based on relevance or responsiveness. That’s huge. I’ve never seen another ruling like it because it lends support to the argument that defining the keyword defines the test for relevance. Many requesting parties have argued for such an interpretation, but I’ve not seen it sustained heretofore.
Yes, but should courts do that in a vacuum? While I agree a couple of the terms could be considered evident, a wild card of “black!” would retrieve terms like “blackberry”, “blackbird”, “blackboard”, “blackjack”, “blackmail” and “blacksmith”. These are terms that certainly would be unlikely to have anything do to with race discrimination and not a determiner of responsiveness. Not to mention that the term “black” can be applied to the color (technically, lack of color) of anything (e.g., my new car is black, the night is black, etc.), not just people. This seems like an obvious miss to me.
I liked it better when the court left it to the parties to confer on ALL search terms and consult with experts when there were disputes instead of taking a stab at deciding them in a vacuum. Angels, be afraid, be very afraid!
Doug & Craig – This practice of limiting or enlarging search terms has been ongoing for years despite Judge Facciola’s warning – well over 30 cases throughout the US.
Thanks for the comment, Michael! I agree and, in fact, have covered several of those cases myself over the years. The question is whether they have instructed parties to produce ALL documents retrieved by them without conducting a relevance review (subject to privilege, of course). I’ll bet some judge somewhere has done so, though I’m not familiar with a case where it was done.