By Marjorie Johnson, J.D.
FedEx must turn over a large batch of emails in response to the EEOC’s discovery request in support of its lawsuit asserting that the company engaged in nationwide and ongoing disability discrimination with respect to deaf and hard-of-hearing package handlers and applicants. Rejecting FedEx’s argument that the search of its electronic repositories would not tum up a sufficient quantity of responsive and relevant documents to justify the work and expense, a federal court in Pennsylvania denied its motion to preclude the discovery or for a protective order (EEOC v. FedEx Ground Package System, Inc., March 21, 2018, Hornak, M.).
FedEx challenges EEOC’s request for emails. This discovery dispute centered on the EEOC’s request for production of electronically stored information (ESI); specifically, emails that contained specified search terms and were in the possession of FedEx’s corporate custodians. The crux of FedEx’s argument was that the search of its electronic repositories for these emails would not tum up a sufficient quantity of responsive and relevant documents to justify requiring it to dig into 363,765 already-generated electronic files. It also argued that the emails were “not reasonably accessible” because the volume of information exceeded FedEx’s internal capabilities.
Statistical sampling. To support its assertion that it should not have to produce the emails, FedEx reviewed a “statistical sample” of 1,061 documents and found only 111 (10.46 percent) to be responsive. When it included attachments and parent documents (bringing the reviewed number to 2,816), only 170 were deemed responsive, which dropped the “responsive rate” to 6 percent. It also asserted that none of the documents contained any “smoking guns.”
After the court gave the EEOC the opportunity to “reverse engineer” FedEx’s statistical sample analysis, the company “updated” its numbers to reflect a “responsive rate” of the sampling to 8.3 percent. The EEOC objected to many of these statistics, arguing that FedEx was low-balling the responsive rate. Finally, FedEx estimated that the cost of running searches on the 193 gigabytes of email data at issue would cost $28,907 plus a $2,891 monthly hosting charge.
Emails were relevant. The court squarely rejected FedEx’s assertion that both the search terms themselves and the results produced in the sample analysis were irrelevant to the EEOC’s claims. FedEx incorrectly framed relevancy as a “binary test” where information is either irrelevant or a “smoking gun.” Moreover, the EEOC’s request was within the much more encompassing target of what would reasonably lead to the discovery of information relevant to the EEOC’s claims or FedEx’s defenses.
Accessibility and undue burden arguments fail. FedEx claimed that around 363,765 documents would be subject to the EEOC’s email production request, and that considering its revised responsive rate of 8.3 percent, the EEOC’s request was thus likely to generate 30,192 responsive documents. However, the EEOC claimed there were an additional 200 responsive documents in the sample batch, which would bring the response rate went up to 15 percent (or about 54,565 documents).
Considering these figures, the court rejected FedEx’s argument that because the starting pool of documents was that large, and the anticipated relevant results were comparatively smaller (although still well into the tens of thousands), the EEOC should not be able to access any discoverable ESI documents. Many organizations choose to store very large amounts of data electronically, and the reality of “e-discovery” is that parties are left with the tasks of examining and producing relevant electronic information when called upon in litigation. The fact that these repositories create “complex mechanisms to store huge amounts of information” cannot be used in and of itself as a shield to avoid otherwise allowable discovery requests.
Moreover, both parties had always undisputedly understood that this was a big case that would take considerable time and effort to prosecute and defend, with likely large amounts of potentially discoverable information. The court also opined that if FedEx had initially focused its considerable legal energy on working with the EEOC to conduct the sample analysis and then refining search terms, it might have saved time, resources, and expense. The court found it “telling” that after the parties’ “collaboration” occurred, the EEOC’s arguments remained largely unchanged while FedEx’s “results” from the analysis notably changed.
FedEx to bear own costs. Finally, FedEx failed to show that the costs of sifting through the repositories that it elected to maintain as part of its general business plans and operations should be shifted to the EEOC. Moreover, any actual burden on FedEx to search the identified and segregated ESI items could be greatly reduced since the EEOC had agreed to take over that task at its expense in the context of the “clawback” provisions of Rule 502(d) and any applicable agreement of the parties in such regards. And even if FedEx was concerned that there is a privilege issue in the EEOC doing the examination of the documents, it appeared that there were “reasonable, targeted, limited custodian searches that were highly likely to ameliorate that privilege risk.”
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