United States District Court, M.D. Pennsylvania
MEMORANDUM AND ORDER
C. Carlson United States Magistrate Judge
Factual and Procedural Background
in technology now enable us to collect, retain, analyze and
review electronically stored information (ESI) on a scale
which was unimaginable a generation ago. These technological
advances, however, create a challenge for parties who become
engaged in litigation: How do parties conduct civil discovery
and assess questions of relevance and privilege when
presented with the staggering volume of ESI which many large
organizations routinely collect and retain?
this challenge, the Sedona Conference has developed a series
of guiding tenets, the Sedona Principles, which describe best
practices in this field. See the Sedona Conference,
The Sedona Principles, Third Edition: Best Practices,
Recommendations & Principles for Addressing Electronic
Document Production A Project of the Sedona Conference
Working Group on Electronic Document Retention and
Production, 19 Sedona Conf. J. 1 (2018). The Sedona
Principles embrace 14 specific tenets,  marked by several
overarching guiding concepts. First, the Sedona Principles
recognize that the technological advances that enable us to
store countless pieces of data electronically do not alter
the legal obligations of parties in discovery. Therefore,
parties must still follow the principles embodied in Federal
Rules of Civil Procedure when preserving, collecting,
evaluating, and disclosing ESI. Id. Principles 1, 2.
However, the sheer volume of this data imposes special duties
and obligations on litigants. Foremost among these
obligations is a duty to work in a cooperative and
collaborative fashion to devise discovery strategies which
allow of the transparent disclosure of relevant evidence that
is not cloaked in any claim of privilege. Indeed, the Sedona
Principles' injunction that parties should collaborate in
conducting electronic discovery underscores that cooperation
is the keystone to any successful ESI discovery strategy.
Id. Principles 3-12.
Sedona Principles then identify two specific, collaborative
strategies which, when employed by litigants, enhance the
fairness and transparency of voluminous ESI discovery review:
The use of relevant search terms or technology assisted
review to cull ESI and on-going sampling of data to assess
the accuracy of search term searches. Id. at 164-67.
This process, however, places reciprocal responsibilities on
all litigants. First, for requesting parties, it is clear
that discovery requests for electronically stored information
should be as specific as possible. This duty of specificity
applies to the formulation of search terms to be used in ESI
searches. These search terms should be tailored to the needs
of the case and designed to capture that which is relevant
without burdening parties with excessive, irrelevant data.
For responding parties, there is a corresponding duty to
ensure the accuracy of searches by cooperating in sampling
techniques that allow the parties to revise their searches to
locate that which is relevant, protect that which is
privileged, and exclude that which does not pertain to the
litigants depart from these Sedona Principles, ESI discovery
can often devolve into a dysfunctional process, one which
produces more heat and smoke than light. When this occurs,
the court must intervene and prescribe cooperative practices
for parties that are unable to collaborate on their own.
There is a peril to this course, which thrusts responsibility
for devising elements of an ESI discovery strategy upon the
court. As one judge has observed: “Given this
complexity, for . . . judges to dare opine that a certain
search term or terms would be more likely to produce
information than the terms that were used is truly to go
where angels fear to tread.” United States v.
O'Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008).
Nonetheless, in this case we are called upon to perform this
task for the parties who are now engaged in an intractable
series of ESI discovery disputes.
case is a Fair Labor Standards Act (FLSA) collective action
brought on behalf of current and former Operations Managers
(OMs) employed at various Love's Travel Stops. (Doc. 1).
The plaintiffs allege that they were misclassified as exempt
managerial employees under the FLSA, 29 U.S.C. § 201,
et seq., and accordingly were not paid overtime as
required by federal law. (Id.) On February 16, 2018,
the court entered an order conditionally granting the
plaintiffs' motion for class and collective certification
in this case. (Doc. 68). Following the entry of this order,
approximately 400 current and former Love's OMs opted
into this conditionally certified class and the parties
engaged in a course of reciprocal discovery involving the
defendants and a selected group of discovery Opt-in
plaintiffs. In connection with this reciprocal discovery, the
plaintiffs propounded discovery which sought to review ESI,
including emails of various General Managers (GMs), District
Managers (DMs) and Division Directors who oversaw the work of
these Operations Managers. These emails had an obvious
potential relevance to this FLSA misclassification claim,
since OM job duty discussions by these officials and the
directions that these supervisors provided to the OMs could
shed light on whether the OM duties were truly supervisory
and subject to an FLSA exemption or were more akin to those
of salaried employees entitled to the protections of the
the potential relevance of this information thus defined, the
parties have engaged in what we regard as a dysfunctional ESI
discovery process. While each party blames the other for the
sorry state of this discovery process, in our view, all
parties share some responsibility for the current sad state
of this discovery. At the outset, we question whether the
plaintiffs' proposed list of 65 search terms fully met
the Sedona Principles' injunction that discovery requests
for electronically stored information should be as specific
as possible. For example, the use of search terms like
“expect”, or “salar*” are so broad
that they may well capture much which is not relevant and
exponentially increase the costs and burdens of discovery.
While Love's decries the use of this expansive list of
search terms as a burdensome departure from the Sedona
Principles, Love's itself is alleged to have also failed
to abide by these principles. Specifically, the plaintiffs
allege that when initial hit reports of these search terms
were run by Love's, the defense then refused to engage in
the form of sampling that the Sedona Conference has deemed to
be essential to informed modification and refinement of
the conduct of this aspect of ESI discovery was marked by
mutual departures from the best practices enshrined in the
Sedona Principles. The plaintiffs had not narrowly crafted
their search terms and the defendant had declined to allow
transparent sampling to refine further word searches. Even at
this juncture, however, adherence to the overarching Sedona
guidance that parties work together in a cooperative and
collaborative fashion might have enabled the parties to
overcome these early missteps and devise a mutually agreeable
ESI protocol without the court's intervention.
despite our encouragement, the parties did not choose this
collaborative direction. Instead, each party followed its own
unilateral course, choosing separate paths that lead to the
current ESI discovery impasse. For its part, Love's chose
on its own to add modifiers to the plaintiffs' search
terms, adding “OM” or “Operations
Manager” to the plaintiffs' proposed search terms.
While these modifiers significantly narrowed the scope of
responsive documents, as the plaintiffs have pointed out, the
use of these modifiers may be unduly restrictive and, in the
absence of some rational mutual sampling process, it is
impossible to reliably determine what the universe of
potentially relevant, but unidentified, records may be.
by the defendant's refusal to engage in sampling of data,
the plaintiffs have advanced their own unilateral approach to
ESI discovery, recommending that we order the wholesale
disclosure of specific percentages of the various records
identified by the defense based upon the plaintiffs'
initial 65-word search parameters. While this approach may
avoid the evil that the plaintiffs identified in Love's
narrow search-the fact that the narrow modifiers used by
Love's may not capture other relevant ESI-this proposal,
which is not informed by any data sampling, runs the risk of
being vastly over-inclusive, imposing undue expense and
burdens upon Love's.
with this binary choice by the parties, a binary choice
driven by the failure to abide by Sedona Principles, for the
reasons set forth below, we will choose a third path for the
parties, one which compels cooperation and scientific
sampling to achieve fair ESI discovery
regarding the proper scope of discovery are matters consigned
to the court's discretion and judgment. A court's
decisions regarding the conduct of discovery will be
disturbed only upon a showing of abuse of that discretion.
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d
Cir. 1983). This far-reaching discretion also extends to
rulings by United States Magistrate Judges on discovery
matters. In this regard:
District courts provide magistrate judges with particularly
broad discretion in resolving discovery disputes. See
Farmers & Merchs. Nat'l Bank v. San Clemente Fin.
Group Sec., Inc., 174 F.R.D. 572, 585 (D.N.J. 1997).
When a magistrate judge's decision involves a
discretionary [discovery] matter . . ., “courts in this
district have determined that the clearly erroneous standard
implicitly becomes an abuse of discretion standard.”
Saldi v. Paul Revere Life Ins. Co., 224 F.R.D. 169,
174 (E.D. Pa. 2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D. Pa. 1996)). Under the
standard, a magistrate judge's discovery ruling “is
entitled to great deference and is reversible only for abuse
of discretion.” Kresefky v. Panasonic Commc'ns
and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996); see
also Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D.
42, 44-45 (N.D.N.Y. 1999) (holding that discovery rulings are
reviewed under abuse of discretion standard rather than de
novo standard); EEOC v. Mr. Gold, Inc., 223 F.R.D.
100, 102 (E.D.N.Y. 2004) (holding that a magistrate
judge's resolution of discovery disputes deserves
substantial deference and should be reversed only if there is
an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 2735702, at
*1 (D.N.J. Sept. 27, 2010).
exercise of this discretion is guided, however, by certain
basic principles. At the outset, Rule 26(b) of the Federal
Rules of Civil Procedure generally defines the scope of
discovery permitted in a civil action, prescribes certain
limits to that discovery and provides as follows:
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by
court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's 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 ...