Fed. R. Civ. P. 1 used to limit Rule 30(b)(6) depositions addressing a party’s email policies and search for responsive emails

April 16th, 2009 | By Steve Puiszis

Newman v. Borders, Inc., 2009 WL 931545 (D.D.C. April 6, 2009)

In Newman v. Borders, Judge John Fasciola relied upon Rule 1 of the Federal Rules of Civil Procedure to limit a party’s request for an additional 30(b)(6) deposition sought by the plaintiff in a motion to compel. Newman involved a racial discrimination claim where the discovery costs dwarfed the potential recovery. Thus, in order to bring the discovery dispute to “a just and inexpensive conclusion,” rather than allowing another costly 30(b)(6) deposition requested by the plaintiff, Judge Fasciola ordered the defendant to submit an affidavit from a knowledgeable company representative answering a series of nine questions which he outlined, addressing the issues that were the subject of the motion to compel.

In light of the costs of electronic discovery, given Rule 1’s mandate that the Federal Rules should be interpreted to secure the “inexpensive determination of every action and proceeding,” it should be part of any party’s playbook to control ediscovery costs. Frequently however, it seems that court and counsel lose sight of Rule 1’s approach. Perhaps Newman, and other likeminded decisions will signal the way to control the costs of discovery.

The Newman lawsuit stemmed from an incident at a Borders book store where a store detective approached and questioned the plaintiff. The plaintiff believed the incident was racially motivated, and subsequently brought a §1981 discrimination claim against Borders. Borders defended the action noting that the plaintiff was questioned only because the store detective saw him take an item from the shelf, and place it into a bag which he had brought into the store.

During the course of discovery, plaintiff sought to take a Rule 30(b)(6) deposition of a Borders’ representative. One of those topics to be covered in that 30(b)(6) deposition was “Borders’ document, information, and record collection and retention policies and practices.” During the course of the 30(b)(6) deposition, the Borders’ representative was questioned regarding the company’s policy dealing with the retention and destruction of emails. However, that was not one of the topics listed in the 30(b)(6) notice. The witness did not know the company’s email retention policy, and while the witness was aware that emails were backed up by the IT department, she did not know how long they were retained. The representative also did not know whether Borders had a written policy regarding the retention of emails, did not know what custodians’ emails were searched or what search terms were used.

The plaintiff subsequently filed a motion to compel requesting Borders designate another 30(b)(6) witness to testify as to the company’s email retention policies, and any searches conducted for emails. In opposing that motion, Borders pointed out that the plaintiff never sought any documents retention or email policies in any formal discovery requests, and that plaintiff never specifically referred to the defendant’s email policies or search protocols for responsive emails in the description of the topics to be covered in 30(b)(6) deposition.

Discovery of Document Retention and Email Policies

Judge Fasciola recognized that a party’s document retention policies including its policies involving electronically stored information are a proper subject of discovery. He also noted that these policies can be the topic of a 30(b)(6) deposition, and that a party must produce a “30(b)(6) designee,” who can knowingly address these topics. If necessary, a party must educate its designee so that the witness can address the topic on the company’s behalf.

Rule 30(b)(6) Deposition Notices Must Clearly Define the Topics to be Covered

Judge Fasciola also observed however, that any party seeking a Rule 30(b)(6) deposition must clearly delineate the topics to be covered at the deposition. He noted that in Newman the terms “email” and “electronically stored information” were conspicuous by their absence in the description of the topics to be covered in the 30(b)(6) deposition. After carefully reviewing the deposition notice, Judge Fasciola concluded that any reasonable lawyer would not have thought that Borders’ email retention policies and its email search protocols were going to be topics at the deposition.

Fed. R. Civ. P. 1

Rule 1 of the Federal Rules of Civil Procedure requires that the federal rules “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Judge Fasciola noted that a court has “the unquestioned right (if not the duty) to bring discovery disputes to a just and an inexpensive conclusion” under Rule 1.

Because the case was littered with a number of discovery disputes, he noted that the legal fees incurred to date likely dwarfed the plaintiff’s potential recovery and, therefore, refused to allow another costly deposition. In lieu of another Rule 30(b)(6) deposition, Judge Fasciola directed Borders to submit an affidavit from a knowledgeable representative addressing the following nine questions:

• What kind of e-mail system does Borders have? (i.e., Outlook, Lotus Notes or proprietary)?
• Is that system programmed to delete emails automatically that have been in existence for a certain period of time? If the answer is yes, what is the period of time and was that system shut off or kept on after the incident involving plaintiff?
• Does Borders have a policy that requires either the retention or deletion of e-mails and, if so, what is the policy and is it in writing? If it is in writing, it will be appended to the affidavit.
• Was it necessary to make efforts to prevent the deletion of emails after the incident involving plaintiff, and, if so, what efforts were made?
• Is Borders aware of the deletion of any emails pertaining to the incident involving plaintiff?
• Who was responsible for search for any emails pertaining to the incident involving plaintiff?
• How did this person or these persons conduct the search? What receptacles of electronically stored information were searched? Network serves, individual hard drives?
• If individual hard drives were searched, whose were they?
• Did the search involve the use of keywords and, if so, what were they?

Conclusion

Frequently, attorneys pursuing civil rights litigation have little concern over the extent of discovery because if they prevail, they can recover their fees under 42 U.S.C. §1988. That scenario is aggravated when electronic discovery is involved. In Newman, Judge Fasciola relied on Rule 1 to limit some discovery costs. Parties should also not overlook Rule 26(b)(2)(C) which authorizes a court to limit the extent of discovery otherwise allowed when “the burden or expense of the proposed discovery outweighs its likely benefit.” See Fed. R. Civ. P. 26(b)(2)(C)(iii). In a future post, we will discuss the application of Rule 26(b)(2)(C) to discovery in civil rights claims brought against municipalities and other units of local government.

Michael Doyle comments on this case over at Suits & Sentences.

Stop sign photo courtesy Flickr user ladybeames under this Creative Commons license.

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