In Wilbert v. Pyramid Healthcare, Inc., No. 24-331 (W.D. Pa. Mar. 20, 2025), Pennsylvania District Judge W. Scott Hardy denied plaintiff’s motion to compel, finding several deficiencies in the motion made by plaintiff’s attorney Joshua P. Ward, including overly broad custodians, search terms and temporal scope. Judge Hardy also ordered Attorney Ward to “show cause why sanctions should not be imposed upon him in his personal capacity as well as upon his law firm” for “Failing to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) and all related Court rules” and “Misrepresenting to the Court that he has satisfied his conferral obligations in good faith before filing the Motion to Compel as required by Rule 37.”
Case Discussion and Judge’s Ruling
In this case involving claims of pregnancy-based discrimination and harassment, retaliation, and statutory leave of absence claims against the plaintiff’s former employer, the Court issued an order on November 27, 2024 granting Attorney Ward leave to file a motion to compel discovery, specifically addressing the matters identified in the parties’ joint correspondence. The order outlined specific requirements for the motion, including substantiating factual assertions with affidavits or declarations and specifying the relevance of each discovery item.
As Judge Hardy noted: “From the inception of this action, Counsel for the parties could not agree on the scope and methodology for ESI discovery.” Part of the dispute related to the fact that Attorney Ward supplied Defense Counsel with a 30-page document entitled “J.P. WARD & ASSOCIATES, LLC – MANDATORY RULE 26(F)(2), (3) ESI DISCOVERY PLAN FOR USE IN EMPLOYMENT LAW CASES”, representing that this document outlines his law firm’s “standard procedures for the Rule 26(f) conference and subsequent proceedings.”
As Judge Hardy stated: “Use of the word ‘mandatory’ in the title of this 30-page tome reinforces Attorney Ward’s intended use of this document to impose extensive ESI protocol requirements unilaterally on opposing counsel and their clients in employment cases generally…While some features of this document may prove helpful to counsel when conferring to develop an ESI discovery plan, it far exceeds the scope and depth of items addressed in this District’s suggested Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information…and related Guidelines for the Discovery of Electronically Stored Information…, and it also misstates or overstates several provisions of the applicable rules and standards in this regard. Furthermore, in the Court’s estimation, the Ward Firm ESI Plan frames certain conferral elements in an argumentative and non-negotiable manner, suggesting an unwillingness to modify it during the required conferral process.”
Attorney Ward also insisted that Defendants not be permitted to use their own internal IT personnel to perform e-discovery collection in-house, and that Defendants instead be required to hire an independent vendor who must deploy “sophisticated e-discovery software” for such purposes.
Ultimately, Judge Hardy denied the motion to compel for these reasons:
- Overly Broad Custodians: “Attorney Ward impermissibly insists that Defendants search ESI from an overly broad and irrelevant set of custodians, particularly their attorneys and all HR staff regardless of their involvement in Ms. Wilbert’s employment and termination therefrom.”
- Insistence on “Hit Reports” Before Relevance Assessment: “Attorney Ward impermissibly insists that Defendants run so-called ‘hit reports’ on all of his search terms before assessing whether each of those search terms are relevant. As the Court informed Attorney Ward at the Rule 16 ICMC, his insistence on doing so, in a simple, non-document-intensive employment discrimination case such as Ms. Wilbert’s case, seems backwards and inappropriate.”
- Irrelevant and Overly Broad Search Terms: Attorney Ward’s list of nearly 60 search terms included many “crude, vulgar, and sexual words” that appeared to have no connection to the specific pregnancy-based discrimination and retaliation claims, which as Judge Hardy stated: “creates the impression that he simply seeks to harass Defendants, needlessly increase the costs of litigation, and/or undertake an unsubstantiated fishing expedition.”
- Overly Broad Temporal Scope: Attorney Ward sought ESI dating back to September 15, 2018, significantly predating Ms. Wilbert’s employment (November 3, 2020) and the alleged discriminatory conduct (beginning April 10, 2023). He provided no credible explanation for this broad time frame.
Judge Hardy also found Attorney Ward’s motion lacking in terms of meeting the requirements set forth in November 2024 regarding substantiating factual assertions and a particularized explanation of the relevance of each discovery item.
As a result, Judge Hardy ordered “Attorney Ward to show cause why sanctions should not be imposed upon him in his personal capacity as well as upon his law firm, J.P. Ward & Associates, LLC, for:
(i) Failing to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) and all related Court rules; and
(ii) Misrepresenting to the Court that he has satisfied his conferral obligations in good faith before filing the Motion to Compel as required by Rule 37.”
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Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. See what Kelly Twigger has to say about the case here!
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