United States District Court, D. Vermont
ASHLEY M. LAREAU, Plaintiff,
NORTHWESTERN MEDICAL CENTER, Defendant.
OPINION AND ORDER
William K. Sessions III District Court Judge.
Ashley Lareau is suing Northwestern Medical Center
(“NMC”) for wrongful termination, claiming that
NMC fired her, at least in part, because of her disability.
Now before the Court is Lareau's motion to compel
electronically stored information (“ESI”) in
NMC's possession. In a prior Order, the Court directed
the parties “to confer and arrive at a reasonable scope
of ESI production using appropriate search terms and in a
format that reasonably accommodates Plaintiff's needs
without overly burdening NMC.” ECF No. 105 at 2. The
parties have been unable to identify search terms that
satisfy those parameters.
reasons set forth below, the motion to compel is
initially asked NMC to produce ESI using 18 search terms. The
ESI in question includes approximately 24, 000 NMC emails.
Using only seven of those 18 terms, NMC produced over 3, 000
pages of documents and objected to the scope of the request.
Lareau moved to compel, and the Court issued the above-cited
Order requiring the parties to confer and agree upon
appropriate search terms.
subsequently proposed 34 search terms, some of which were in
the original list to which NMC had objected. NMC informed
Plaintiff's counsel that using the first four of the
proposed 34 terms, it had spent over 20 hours retrieving 2,
912 documents totaling 5, 336 pages. Lareau's counsel
later acknowledged in an email that the initial production
was voluminous and unwieldy, and suggested that NMC use only
the newly-proposed search terms.
made another effort to comply, performing a search using the
suggested term “Experian.” The process of
searching, coding, and producing reportedly took five hours
and identified 472 documents. NMC represented to Lareau's
counsel that few of those documents were relevant.
Extrapolating that work to 34 search terms, NMC contends that
Lareau's production request would require 170 hours of
attorney and paralegal time and would produce little, if any,
informed opposing counsel that given the burden of production
and the limited relevance of the search results, it would not
expend any additional time performing the requested searches.
Lareau's counsel has invited NMC to offer additional
suggestions as to search terms, but NMC has declined that
invitation. Lareau now contends that NMC is failing to comply
with the Court's prior order, and asks the Court to issue
a second order requiring a conference of counsel, possibly
mediated by a magistrate judge or ENE evaluator.
the Federal Rules of Civil Procedure, a party is required to
provide ESI unless it shows that the source of such
information is “not reasonably accessible because of
undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). Once
the responding party shows that the ESI is not reasonably
accessible, the requesting party may still obtain discovery
by showing good cause. Id. “The decision
whether to require a responding party to search for and
produce information that is not reasonably accessible depends
not only on the burdens and costs of doing so, but also on
whether those burdens and costs can be justified in the
circumstances of the case.” Advisory Committee Note to
the 2006 amendments to Rule 26(b)(2).
the Court ordered cooperation among counsel, and
counsel's efforts did not produce a workable solution.
NMC has tried to comply and shown that, to date, the
information sought using Lareau's proposed search terms
is not reasonably accessible. Indeed, NMC has expended
considerable time and expense producing documents that
reportedly have little relevance to this case.
Court could nonetheless compel discovery for good cause
shown. Fed.R.Civ.P. 26(b)(2)(B). Here, there has been no such
showing. In a typical case, a court will require the parties
“to test both the cost and the yield” of sample
searches in order to determine whether the discovery request
is reasonable. See S.E.C. v. Collins & Aikman
Corp., 256 F.R.D. 403, 418 (S.D.N.Y. 2009) (“The
concept of sampling to test both the cost and the yield is
now part of the mainstream approach to electronic
discovery.”). In this case, however, the parties have
already undertaken such testing, with the cost clearly
outpacing the value of the yield. Without any indication that
the parties will develop effective search terms, Lareau
nonetheless asks the Court to extend that testing process.
NMC's reports about its initial efforts offer little hope
that further sampling will reveal a reasonable approach.
Federal Rules dictate that discovery may not be used to
impose an unnecessary burden on an adversary or to seek
information that has no or minimal relevance to the claims or
defenses. See generally Fed. R. Civ. P.
26(g)(1)(B)(iii). In this case, there is no allegation that
Lareau's requests have been interposed in bad faith.
Nonetheless, as her counsel has acknowledged, she is
searching a massive database that has proven difficult to
manipulate, resulting in hours of wasted time and resources.
Since the Court issued its prior Order, NMC has produced 3,
384 additional documents containing little relevant