Cooperation Is Key: E.D.N.Y. Decision Illustrates the Risk of Refusing to Cooperate in Discovery

While litigation is inherently adversarial, counsel and litigants would be well-served to recognize that “zealous advocacy” and cooperation need not be mutually exclusive, especially in cases with significant amounts of electronically stored information (ESI). A recent decision from the District Court for the Eastern District of New York illustrates the risk a party and/or counsel takes in refusing to engage in the meet and confer process. This decision also reaffirms the fact that, when parties are working on crafting ESI search terms, it is the parties, not the court, who are in the best position to resolve such discovery disputes through the meet and confer process required under FRCP 26.

Cooperation during the discovery process is not only economical in avoiding potential costly disputes, but also required by the Federal Rules of Civil Procedure. In particular, Rule 1 instructs the parties must help the court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” Additionally, many times, the local rules for the district courts, judicial preferences and procedures, and/or state court rules impose specific requirements for a party to outline good faith efforts taken before filing a motion to compel related to pretrial discovery.

In Beaton v. Verizon N.Y., Inc., the plaintiff initiated a collective action against the defendant under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) for alleged nonpayment for tasks performed prior to or after his shift as a technician escort – someone who “provid[es] security to technicians during their visits to customers’ homes and businesses.” The court entered a conditional certification for the plaintiff’s FLSA claim, limited to the garage out of which the plaintiff was based. Subsequent to this conditional certification, the parties raised two discovery disputes requiring the court’s adjudication: (1) determining the appropriate search terms for ESI relevant to the plaintiff’s claims; and (2) requesting to compel the defendant’s responses to certain interrogatories and document requests.

With regard to the ESI search terms, the court admonished the plaintiff for his lack of cooperation in crafting appropriate and reasonable search terms. For example, the plaintiff proposed more than 40 search terms for one interrogatory, which resulted in more than 84,000 hits. After the plaintiff provided revisions to the terms, the number of hits was reduced to about 59,000. The defendant noted that only 3,400 hits occurred when it ran the plaintiff’s name and requested the plaintiff propose additional targeted searches in an effort to reduce the burden of production. The plaintiff failed to respond to the defendant’s request, and instead raised the issue with the court. The court noted it was “ill-suited to resolve” the dispute and directed the parties to meet and confer to develop the appropriate search terms.

Additionally, the court denied the plaintiff’s request to compel interrogatory and document request responses seeking information for potential class members, because the plaintiff failed to demonstrate the relevance of such information and, in light of the breadth of the information sought, compliance with the requests would impose an undue burden on the defendant.

The Beaton opinion provides an egregious example of the failure to cooperate in the discovery process. Not only does a failure to cooperate flout the Federal Rules of Civil Procedure and drive up litigation costs through “discovery on discovery” and motion practice, it also destroys a party’s credibility with the court, as the first question most judges will have for counsel in addressing a motion to compel will deal with what the moving party did prior to filing a motion to compel to resolve the dispute without judicial assistance. To effectuate cooperation in the discovery process, counsel must understand the facts and issues of the case and identify data custodians through effective custodian interviews that help counsel identify the relevant ESI and its location, as well as the best way to preserve the relevant ESI. By engaging in these steps, the parties will be in the best position to resolve potential discovery disputes involving ESI, such as narrowing search terms or suggesting alternative custodians or data locations. Cooperation by the parties will, in many cases, prevent costly motion practice, and for those situations where good faith efforts fall short, the parties will at least be able to inform the courts that they took the meet and confer requirements seriously, but simply were not able to resolve their differences.

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