DAVID LYMAN v. FORD MOTOR COMPANY (2023)

ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL ELECTRONIC SEARCHES OF CUSTODIAN RECORDS (ECF NO. 112)

A.

Plaintiffs moved to compel electronic searches of Defendant Ford Motor Company's records associated with four custodians. ECF No. 112. The Honorable Gershwin A. Drain referred this motion to the undersigned for hearing and determination under 28 U.S.C. § 636(b)(1)(A). ECF No. 114. After a hearing on June 27, 2023, the Court:

• GRANTS plaintiffs' request for Ford to undertake electronic searches of all records associated with four custodians (John Dunahay, Chris Palazzolo, Glenn Humphries, and Matt Matthews);

• ORDERS that the parties have transparent and cooperative discussions about the search terms and search methodology, and that defendants produce responsive documents. The Court will hold a status conference on July 11, 2023 at 11:00 AM via Zoom.

B.

The Court detailed its reasoning during the hearing. To summarize, Ford provided a vague description of its search methodology for most of the custodians, and it claimed privilege for testimony that plaintiffs said proved that Ford's methodology was too custodian-driven. ECF No. 123-10, PageID.6540; ECF No. 125, PageID.6699. Although there is conflicting precedent, this Court announces in this order that it agrees with opinions emphasizing that “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009); see also In re Valsartan, Losartan & Irbesartan Prod. Liab. Litig., 337 F.R.D. 610, 617–18 (D.N.J. 2020) (same).

And this Court has already held that “an attorney may not simply rely on custodian self-collection of ESI. Instead, counsel must test the accuracy of the client's response to document requests to ensure that all appropriate sources of data have been searched and that responsive ESI has been collected—and eventually reviewed and produced.” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 569 F. Supp. 3d 626, 636 (E.D. Mich. 2021) (cleaned up).

The Court also rejects any argument that a party's search protocol is privileged. Romero v. Allstate Ins. Co., 271 F.R.D. 96, 110 (E.D. Pa. 2010) (finding search methodology not protected by work-product protection because “the underlying facts of what documents are responsive to Plaintiffs' document requests and does not delve into the thought processes of Defendants' counsel.”); Vasoli v. Yards Brewing Co., LLC, No. CV 21-2066, 2021 WL 5045920, at *2 (E.D. Pa. Nov. 1, 2021) (“[N]either the attorney-client privilege nor the work-product doctrine prohibit the disclosure of factual information, the steps that a party took to search for and produce relevant documents are discoverable.”). As well stated in Vasoli:

It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions.

2021 WL 5045920 at *2.

Finally, despite Ford's claim that it made a full production of responsive documents, the limited production from key custodians “permits a reasonable deduction that other documents may exist.” Maker's Mark Distiller, Inc. v. Spalding Grp., Inc., No. 319CV00014GNSLLK, 2021 WL 2018880, at *3 (W.D. Ky. Apr. 20, 2021).¹

IT IS SO ORDERED.

NOTICE TO PARTIES ABOUT OBJECTIONS

Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.

CERTIFICATE OF SERVICE

The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on June 28, 2023.

MARLENA WILLIAMS Case Manager

FOOTNOTES

1.   Ford's motion to seal exhibits, ECF No. 109, was not referred to the undersigned. If it had been, the Court would have denied the motion for the reasons stated in plaintiffs' response. ECF No. 120. The Court does not believe that the exhibits at issue were essential to this Court's ruling on the motion to compel. During their meet and confer, the parties may discuss whether they wish to stipulate to remove the exhibits from the docket before the motion to seal is decided.

ELIZABETH A. STAFFORD United States Magistrate Judge