In Zhulinska v. Niyazov Law Grp., P.C., No. 21-CV-1348 (CBA) (E.D.N.Y. Nov. 12, 2021), New York Magistrate Judge Roanne L. Mann, responding to a joint request by the plaintiffs and the Niyazov defendants to resolve discovery disputes, granted the plaintiffs’ demands in large part, requiring the Niyazov defendants to conduct a search of ESI using additional search term requests proposed by plaintiffs and requiring the Niyazov defendants to produce the resulting ESI in a text-searchable format, but stating the Niyazov defendants “need not produce metadata”.
In this case involving sexual harassment claims against the defendants, the plaintiffs moved to compel the production of electronic communications from the Niyazov defendants on October 4, 2021. At a conference held on October 12, 2021, the Court granted plaintiffs’ motion to compel in large part and directed the Niyazov defendants to “conduct a search for electronic documents and information relevant to plaintiffs’ claims of sexual harassment and failure to pay wages, including information regarding plaintiffs’ employment status”, from several custodians. The Court further directed the parties to confer regarding the selection of search term requests and a stipulated ESI protocol, and to file a joint status report by October 15th, but the parties jointly advised they were at an impasse as to the search term requests (with the Niyazov defendants calling them “broad and non-specific”) and the format in which the resulting ESI must be produced.
Judge Mann ruled on six search term requests, as follows:
- Plaintiffs’ proposed search of emails, on 18 specific dates, for plaintiffs’ names, or for the terms “legal assistant,” “assistant,” “paralegal,” and “secretary”; Judge Mann stated: “To the extent that the Niyazov defendants argue that these terms are too generic, their position is inconsistent with other search terms to which they have agreed, e.g., “employee,” “dinner,” and “restaurant.”…The search terms “legal assistant,” “assistant,” “paralegal,” and “secretary” are relevant to plaintiffs’ employment status and thus to identifying their employer(s).”
- For the period from April 4, 2019 to February 14, 2020, a search for the names of five individuals who were identified in the parties’ Rule 26 initial disclosures; Judge Mann stated: “Again, the Niyazov defendants’ cries of undue burden are purely speculative, in that they do not appear to have performed a search to generate a ‘hit report’ that reflects the number of emails that would have to be reviewed or subjected to predictive coding. That said, in order to reduce the chance of unresponsive ‘hits,’ the Niyazov defendants need not conduct a search for Ms. Arboleda’s name in conducting the keyword search of her email account.”
- Search for the name of defendant Vainer in the accounts of the designated custodians other than Vainer for the period from April 4, 2019 through February 14, 2020; Judge Mann stated: “Mr. Vainer is a party defendant and is alleged to have sexually harassed plaintiffs. Hence, plaintiffs have made a prima facie showing of the relevance of ESI containing defendant Vainer’s name. In contrast, the Niyazov defendants’ generalized objections of burden are insufficient to justify denying the demanded discovery.”
- Search for the terms “dollar” or “$” in conjunction with plaintiffs’ names or with the words “legal assistant” or “assistant” or “paralegal” or “secretary”; Judge Mann stated: “the Court modifies plaintiffs’ proposed search to the extent that the Niyazov defendants need search only for the terms “dollar” and “$,” in conjunction with plaintiffs’ names, and not with the additional terms “legal assistant” or “assistant” or “paralegal” or “secretary.” Such a limitation is proportional to the discovery needs in this case.”
- Search emails with the terms: “phone,” “scan,” “shred,” “file,” “IME,” “arbitration,” “insurance,” “medical,” “office,” in addition to plaintiffs’ names or the terms “legal assistant,” “assistant,” “paralegal” or “secretary”; Judge Mann stated: “The broad terms as proposed by plaintiffs are not proportional to plaintiffs’ need to search for information regarding plaintiffs’ employment relationship with the Niyazov defendants.”
- Search terms “AGA” or “Bay Queens” for emails from April 4, 2019 through February 14, 2020; Judge Mann stated: “The ESI sought by plaintiffs from the designated custodians is relevant to plaintiffs’ theory that the defendants, including defendants AGA Legal Staffing Inc. and Bay Queens Management, Inc., were their joint employers for purposes of liability for sexual harassment… The Niyazov defendants, for their part, have made no showing that a search for such emails would require an unduly burdensome review for relevant information. Absent any evidence as to the volume of emails that include the subject terms during the relevant period, the Niyazov defendants’ objections are insufficient when weighed against the relevance of the information.”
With regard to the form of production, Judge Mann stated: “[c]ourts in the Second Circuit have denied requests for metadata, even where the metadata itself might have some probative value, where that potential value is ‘outweighed by the cost and burden of production.’… Although the Niyazov defendants must not ‘remove[ ] or significantly degrade[ ]’ the searchability of ESI that will be produced, see Fed. R. Civ. P. 34(b) advisory committee’s note to 2006 amendment, they are not required to produce ESI in the format specified by plaintiffs. Thus, the Niyazov defendants need not produce metadata, but must produce responsive emails in a text-searchable format… If the Niyazov defendants produce emails in the form in which they were kept, the Court expects that plaintiffs will receive the associated metadata as well, as it is typically embedded in the electronic files themselves. Alternatively, the Niyazov defendants are permitted to convert their electronic documents to searchable TIFF or PDF images.”
So, what do you think? Do you agree with the Court ruling on the plaintiff’s search term requests? What about form of production? Please share any comments you might have or if you’d like to know more about a particular topic.
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