In Gardner-Alfred v. Fed. Reserve Bank of N.Y., No. 22-CV-01585 (LJL) (S.D.N.Y. May 17, 2023), New York District Judge Lewis J. Liman, finding that plaintiffs “have shown a persistent disregard of their obligations and of the Court’s orders in the past” (including “appl[ying] extremely narrow search terms”) to their collection, issued an adverse inference instruction sanction and defendant’s reasonable expenses and attorneys’ fees.

Case Background

In this case brought by former employees of the defendant who were terminated and claimed they were denied religious accommodations in connection with the COVID-19 vaccines, the plaintiffs first filed the case pro se in New York State Supreme Court. Subsequently, the case was removed to this court and the plaintiffs’ originally retained attorney subsequently withdrew, citing “sharp disagreements” between counsel and Plaintiffs “over the manner in which discovery should be conducted in this case” and cited Plaintiffs’ failure to cooperate with counsel as the basis for withdrawal.

Judge Liman noted: “Almost from the start, Plaintiffs delayed producing documents and information in response to Defendant’s discovery requests.” These delays resulted in fact discovery being extended multiple times. Even after new counsel for plaintiffs represented that Plaintiffs’ past discovery failures would be corrected, “Plaintiffs continued to disregard their discovery obligations.” On January 20, 2023, one day late, Plaintiffs made their first production of documents. It consisted of 161 pages of documents, with a privilege log identifying one withheld document. Plaintiffs continued to produce additional documents in small groups until the Court set a second deadline for document production of March 27. On March 30, 2023, three days after the Court’s deadline of March 27, 2023, Plaintiffs produced a “staggering” 1,082 additional pages of documents.

Part of the defendant’s motion to compel was the claim that Plaintiffs’ counsel had run overly narrow search terms for emails from only three accounts and had indicated that they might refuse to use other search terms or to search other relevant document repositories.

Judge’s Ruling

Regarding the search terms dispute, Judge Limon stated: “Plaintiffs’ counsel blames their plainly inadequate January 20, 2023 production on Defendant. They state that they repeatedly attempted to negotiate search terms with the New York Fed before running searches, but that the New York Fed requested that Plaintiffs run search terms on its own determination…While it is true that parties are generally encouraged to meet and confer on the appropriate search terms to employ for ESI discovery,…the producing party, even absent agreement or discussion about the appropriate terms, still has an independent obligation to craft search terms to fulfill the requirements of Rules 26 and 34…Under Rules 26 and 34 ‘parties [must] conduct a reasonable search for documents that are relevant to the claims and defenses’ and parties ‘have an affirmative obligation to search for documents which they may use to support their claims or defenses, unless the use would be solely for impeachment.’…And, although courts are generally loath to second guess search terms,…there is little question that Plaintiffs’ search terms were not reasonably calculated to lead to production of documents relevant to their claims or Defendant’s defenses. Defendant’s document requests called for ‘[a]ll documents and communications … between or including any Plaintiff and any person … regarding Covid-19, Covid-19 vaccines, the New York Fed’s response to the Covid-19 pandemic, the Vaccination Policy, Plaintiffs’ accommodation requests from the Vaccination Policy, Plaintiffs’ submissions in this action in New York State Supreme Court prior to its removal to this Court, any claims asserted in this action, or the factual allegations underlying any such claims.’…Notably, prior to applying any search terms, Plaintiffs only searched Gardner-Alfred’s and Diaz’s emails between one another and with five other individuals…In other words, any emails of Diaz and Gardner-Alfred, even if highly relevant, would not have been identified unless they were with one of these limited number of individuals. Plaintiffs offer no justification for narrowing the emails searched in this matter. Plaintiffs also applied extremely narrow search terms to these emails. For example, despite the Document Requests asking for all documents concerning Covid-19, documents with the terms ‘covid’ or ‘covid-19’ or ‘coronavirus’ were only searched and produced if one of those words was within ten words of either ‘immune!’ or ‘natural’ or ‘CDC.’”

For “Plaintiffs’ repeated failures to comply with Court orders and their discovery obligations”, Judge Liman granted Defendant’s motion and awarded it reasonable expenses and attorneys’ fees as well as adverse inference instructions that Plaintiffs withheld relevant documents and what those documents would have shown. Those attorneys’ fees and costs ultimately came to $53,808. Judge Liman ultimately granted the defendant’s motion for summary judgment, not because of litigation misconduct, but because he found that “Plaintiffs have not presented evidence from which a reasonable jury could return a verdict for either of them on any of their claims”.

So, what do you think? What do you think about the fact that narrow search terms factored into the decision? Please share any comments you might have or if you’d like to know more about a particular topic.

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