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Equal Employment Opportunity Commission v. Fedex Ground Package System, Inc.

United States District Court, W.D. Pennsylvania

March 21, 2018

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
FEDEX GROUND PACKAGE SYSTEM, INC. Defendant.

          MEMORANDUM OPINION

          Mark R. Hornak Judge

         The issue now before the Court centers on what, if any, discovery of electronically stored information ("ESI"), specifically e-mails, should FedEx be required to produce in response to the EEOC's discovery request. For the reasons that follow, FedEx's Motion to Preclude Discovery or for Protective Order, ECF No. 118, is denied without prejudice.

         This discovery dispute arises out of the EEOC's suit against FedEx in which the EEOC alleges that FedEx engaged in nationwide and ongoing disability discrimination with respect to deaf and hard-of-hearing Package Handlers and applicants to that position.[1]

         FedEx and the EEOC have met and conferred regarding e-mail production in this case. E-mail production, as it is relevant to the dispute here, has centered around e-mails that contain specified search terms and are in the possession of FedEx's corporate custodians. The parties engaged in back-and-forth deliberations on which corporate custodians and what search terms would yield the appropriate discoverable e-mails. The Motion to Preclude indicates that the EEOC seeks to discover roughly 193 gigabytes of e-mail data (consisting of 363, 765 e-mails and attachments) in the possession of twenty-six corporate custodians. ECF No. 118, ¶ 1.

         The core of FedEx's argument is that the search of its electronic repositories for the requested "documents" would not turn up a sufficient quantity of responsive and relevant documents to justify requiring FedEx to dig into 363, 765 already-generated electronic files. In addition, if the Court concludes e-mail discovery is relevant and proportional, FedEx argues the e-mails are "not reasonably accessible" within the meaning of Rule 26(b)(2)(B) because the volume of information[2] exceeds FedEx's internal capabilities. Alternatively, if FedEx is to be required to produce such ESI, FedEx requests that the EEOC bear the cost for all of that work.

         A. The Statistical Sampling

         Intending to demonstrate to the EEOC and the Court that the requested production was beyond the scope of Rule 26, FedEx conducted a "statistical sample" of the e-mails.[3] ECF No. 119, at 6. FedEx took a sample size of 196, 166 unique de-duplicated documents containing one or more of the EEOC's search terms and reviewed a randomly selected group of 1, 061 documents. Id. at 6. FedEx initially asserted that of the 1, 061 documents reviewed, only 111 (10.46%) were responsive. Id. at 6-7. When FedEx included attachments and parent documents related to the reviewed e-mails (bringing the reviewed number to 2, 816), only 170 were deemed responsive (thereby dropping the "responsive rate" of the sample to 6%). Id. at 13. FedEx claimed that only 71 of those 170 documents would be discoverable due to assertions of privilege, and only 50 of those 71 would not have been captured by other discovery requests not at issue here.[4] Finally, FedEx asserts that those 50 documents do not contain any "smoking guns" that would support the EEOC's claims. Id. at 119. After the Court gave the EEOC the opportunity to "reverse engineer" FedEx's statistical sample analysis, FedEx filed a notice with the Court "updating" its prior numbers. ECF No. 184, at 1. Of the same 2, 816 documents reviewed, FedEx now claims 235 should have been deemed responsive. This brings the responsive rate of the sampling to 8.3%. FedEx claims that of that 235, only 79 documents potentially discoverable. Id. The EEOC objects to many of these statistics. ECF No. 207, at 2. Specifically, the EEOC says FedEx is low-balling the responsive rate since it points to over 200 documents that were marked by FedEx as unresponsive that it believes should have been deemed responsive. Id.

         FedEx seeks to weigh its response figures against its purported relevant costs. FedEx estimates that the cost of running searches on the 193 gigabytes of e-mail data at issue will cost $28, 907 plus a $2, 891 monthly hosting charge.[5] ECF No. 120, at 4.

         B. Procedural History

         The Court has read and considered the extensive briefing at ECF Nos. 119, 122, 124, 125, 129, and 130. The Court heard oral argument on the Motion to Preclude on June 22, 2017. ECF No. 138. After the oral argument, the Court deferred ruling until the parties exchanged information related to FedEx's statistical input and methodology (used in FedEx's statistical analysis to support its argument that there would be few fruits to its massive labor) in anticipation that the parties could reach some sort of resolution. Order, ECF No. 141.

         It appears that pretty much just the opposite occurred. The parties disagreed about the scope of the Court's Order, requiring further direction from the Court. ECF Nos. 164, 165, and 166. The parties then proposed a stipulated Order regarding such exchange of information as contemplated by the Court's Order, ECF No. 170-1, and the Court approved it. ECF No. 172. Receiving no supplemental briefings from the parties (with the exception of a Notice to the Court by FedEx on December 19, 2017, ECF No. 184, correcting various statistical figures reported in its initial briefings), the Court ordered the parties to submit a joint status report regarding whether there was still a live dispute as to this matter. Order Directing Joint Status Report, ECF No. 190. The parties indicated that they wanted to submit supplemental briefs on that issue, and those briefs have been submitted to and considered by the Court. ECF Nos. 194, 207, 208, and 209.

         C. Discussion

         After its review of the extensive materials in what appears to the Court to be a relatively straightforward discovery dispute, the Court concludes that the EEOC's requested ESI from FedEx fits within the limits and scope of discovery that the Federal Rules of Civil Procedure say should be permitted in this case. FedEx reportedly went to great lengths (and expense) to demonstrate that the EEOC's requests were "unreasonable, " based on the magnitude of the search results they yielded, but even when the Court considers FedEx's own statistics-based arguments, it concludes that the EEOC's requested discovery remains "relevant to [its] claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(1).

         FedEx argues that regardless of accessibility and the burden of producing such discovery, both the search terms themselves and the results produced in the sample analysis (and therefore the results that would be produced in a full-scale analysis) are irrelevant to the EEOC's claims in this case, and this alone justifies granting the Motion to Preclude under Rule 26. The Court agrees with the EEOC that FedEx incorrectly attempts to frame relevancy as a binary test where information is either irrelevant or a "smoking gun." After review of the EEOC's e-mail discovery request, it strikes the Court as within ...


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