Court Denies Plaintiff’s Motion to Compel

In Mirmina v. Genpact LLC, 2017 BL 260425, D. Conn., Civil No. 3:16CV00614 (AWT), the Court denied Plaintiff’s motion to compel additional responsive electronic communications despite the fact that an individual directly involved in the underlying claims of the suit “self-identified” potentially responsive emails.  The Court based its decision a number of important  factors:

  • Defendant Genpact’s in-house counsel produced an affidavit outlining the process used to preserve and search potentially responsive emails;
  • Genpact’s in-house counsel supervised the preservation and search process;
  • Plaintiff Mirmina was unable to identify any authority stating that self-identification was improper;
  • Mirmina was also unable to identify any emails that Genpact had not produced and was merely speculating that Genpact’s email production was deficient.

Case Background

Scott Mirmina, a former Genpact recruitment manager, sued his previous employer, a professional services firm, alleging age, race, and gender discrimination.

In May of 2017, Plaintiff Mirmina filed a Motion to Compel additional responses to specific discovery requests.  This motion was denied in June 2017, except for materials described in Genpact’s initial disclosures that had not yet been produced.

In July of 2017, Mirmina filed another Motion to Compel asking the court to force Genpact to produce additional responsive emails.  Mirmina stated that he was “concerned” that Genpact had withheld responsive emails and that Genpact’s search for responsive emails was inadequate because an employee directly involved with the underlying issues in the litigation had self-identified potentially responsive emails.

The Court denied Mirmina’s Motion to Compel after Genpact’s counsel described the process used to identify responsive emails.  Specifically, Genpact’s in-house counsel averred that they:

  • issued a timely and detailed litigation hold to potential ESI custodians;
  • provided instructions to the custodians on how to search for potentially responsive emails;
  • provided custodians with specific search parameters to identify potentially responsive emails;
  • explained importance of thoroughly searching for potentially responsive emails; and
  • provided guidance to custodians when they had questions about the search process.

The Court also determined that Mirmina’s allegations that responsive emails had not been produced was based on mere speculation.  The court held that this speculation was insufficient to require Genpact to conduct additional searches for potentially responsive emails.

Practical Takeaways

Self-identification of potentially responsive documents by custodians is not usually recommended.  There are obvious risks involved, including custodians not wanting to produce documents that could be damaging for themselves or their employer.  Further, there are risks involved in having custodians determine what may or may not be responsive to document requests. However, the Court’s decision in this matter describes a scenario in which self -identification of emails may be defensible.

The Court indicated that the primary driver for denying Mirmina’s Motion to Compel was the affidavit provided by Genpact’s in-house counsel detailing Defendant’s document identification and preservation process.  The most important practical takeaway from the Court’s ruling was that self-identification can be defensible, so long as a rigorous process is followed and documented.  This process includes drafting a timely and detailed litigation hold notice, providing instruction to custodians on how to identify potentially relevant documents, and answering questions that custodians may have throughout the process.

Finally, the Court made clear that purely “speculating” that an opposing party’s production is deficient is not enough to compel additional searches or document productions.  In order to compel an additional search for communications, a moving party must provide evidence to support its claim of a deficient production.

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The Eleventh Circuit recently refused to set aside a bank fraud conviction, rejecting defendant’s argument that advances in technology should change the way court’s adjudicate alleged violations of attorney-client privilege.  While the appellate court agreed that defendant’s attorney-client privilege was breached by federal prosecutors, the court refused to overturn defendant’s 78-month sentence because he had failed to meet his burden to show he was prejudiced by the privilege breach.

The defendant, Stephen DeLuca, the president and sole shareholder of Delco Oil, Inc. in Florida, was convicted (after a mistrial) of fraudulently submitting false statement to lending institutions regarding the company’s accounts receivable and inventory and obtaining loans on reliance on the fraudulent information.

When the FBI raided Defendant’s office and seized computers and hard drives prior to his indictment, DeLuca notified the government that the data included privileged communications. The government offered, and DeLuca signed, a stipulation providing a procedure to exclude privileged communications from the investigation.  It provided that an FBI computer analyst would segregate any communications to or from DeLuca’s attorneys based on a list of attorneys provided by DeLuca.  These segregated communications would then go to an FBI “filter team” who were not members of the prosecution team, who would notify DeLuca if it believed any communications were not privileged, or that the privilege had been waived.  DeLuca could then dispute the determination, and the communications at issue would not be provided to the prosecution team until a magistrate judge ruled as to privilege. Continue Reading Eleventh Circuit Rejects Criminal Defendant’s Claim That Digital Technology Requires Increased Scrutiny Of Federal Prosecutors’ Improper Review of Privileged Emails

In Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016), the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

After consulting with an e-discovery vendor, Plaintiff’s counsel in this case “proposed that the City should use TAR as a ‘more cost-effective and efficient method of obtaining ESI from Defendants.’” “The City declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process.”  The issue was referred to U.S. Magistrate Judge Andrew Peck for resolution. Continue Reading Judge Peck Won’t Force Use of TAR