Yes, you read that right! In Edwards v. PJ Ops Idaho, No. 1:17-cv-00283-DCN (D. Idaho March 16, 2022), Idaho District Judge David C. Nye granted the plaintiffs’ Motion to Compel production of the entire email mailboxes of two individual defendants, as well as search terms requested by the plaintiffs to be performed against “12 custodians of certain records”, finding that the request for the entire email mailboxes was “as reasonably proportional and particular as it can be” and the “search terms are also proportional to the case”.
This case involved former drivers for certain Papa John’s pizza franchise locations and claims of violations of the Fair Labor Standards Act (“FLSA”) and relevant state wage laws by improperly applying a tip credit to delivery driver wages and by failing to adequately reimburse delivery drivers for their delivery expenses. The plaintiffs filed a Motion to Compel seeking the production of:
- The entire email mailboxes of Tom Wylie (the sole manager of all the Papa John’s entities in the case) and Douglas “Dougie” Allen (who is or was the operating partner over all but one of the the Papa John’s entities in the case), and
- The application of the following search terms: “(Doug or Dougie) and delivery)”; “mile*”; “mile* and delivery”; “reimburs*”; “termin*”; “Wylie and deliver”; and “Wylie and driver” to 12 custodians of certain records.
The parties met and conferred on several occasions and engaged with the Court in informal discovery dispute negotiations to no avail.
Judge Nye stated: “Given the criticality of determining who is an employer, there is no question that the emails are relevant evidence that can be used to determine whether Wylie and Allen are employers in this case. Email is the choice medium of communication for many businesses, and a review of a person’s email is an easy way to determine whether that person should be considered an employer. Defendants do not dispute this.”
While noting that the defendants would need to review 225,000 additional documents from defendants Wylie and Allen (over the 4,800 already produced), Judge Nye stated: “This review would require an estimated additional 3,050 to 5,450 hours of contract attorney and case team review; for an estimated, additional cost to Defendant of $140,000-$235,000, or two to three times the cost of Defendants’ prior review. The review would require 15 people working full time for one to two months.”
Continuing he said: “And while large, this request is proportional to the needs of the case. Although Defendants are correct that the broad nature of the term ‘employer’ does not excuse the specificity requirements of Rule 34, it does inform how narrow a request for production can be. Here, there are a variety of situations in which Wylie and Allen could demonstrate their authority within the company, each of which would contain a different variety of key words and phrases. Consequently, Drivers cannot restrict their search to a specific set of key words and phrases in this situation without hampering their ability to demonstrate that Wylie and Allen were in positions of authority over the Drivers… Given the criticality of determining who the ‘employer’ is, and the lack of viable alternatives presented to the Court, it is appropriate to compel production of Allen and Wylie’s entire email mailboxes.”
As for the search terms, Judge Nye stated: “The search terms are also proportional to the case. Although the term “terminat*” does have a higher possibility than the other proposed search terms of garnering documents unrelated to the case, all seven search terms are reasonably focused on finding only relevant documents.”
Continuing, he said: “Defendants claim that the Drivers’ search terms will be unduly burdensome, pointing to the high cost of producing such information. However, Defendants’ cost estimates lacks credibility. Defendants originally claimed that reviewing Drivers’ search terms would cost somewhere between $41,000–$63,000…Now, however, Defendants claim that such a review would cost between $72,000–$118,000…Even allowing for inflation, rising attorney fees, and errors in the original estimate given to Plaintiffs, the near-doubling in cost makes little sense, and undercuts Defendants’ claims that the search is unduly burdensome. Thus, it seems likely that Defendants’ actual cost of following such review will not resemble their gloomy prediction of review costs. Defendants’ proposed search terms, on the other hand, unduly narrow the scope of discovery and may lead to relevant emails remaining undiscovered. Defendants’ proposed search terms also do not include Allen within the search, which is especially troubling considering that Allen participated in setting the driver reimbursement rates…As such, the Court GRANTS Drivers’ requests that Defendant’s produce documents corresponding to the seven search terms.”
So, what do you think? Do you think it’s appropriate in any circumstance to compel production of custodians’ entire email mailboxes? Please share any comments you might have or if you’d like to know more about a particular topic.
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