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LLC. v. Automotive Technologies, Inc.

United States District Court, D. Connecticut

May 19, 2016




         Pending before the Court is a motion by plaintiffs Family Wireless #1, et al. (“plaintiffs”) to compel discovery. [Doc. #101]. On May 9, 2016, the Court held an in-person Discovery Conference on the record to address plaintiffs’ motion. On May 10, 2016, the Court issued an Order and Memorandum of Conference granting, in part, the relief requested in plaintiffs’ motion. [Doc. #123]. Plaintiffs’ motion was taken under advisement as to the issue of the number of custodians to be searched for electronically stored information (“ESI”). See id.; Doc. #124. For the reasons articulated below, plaintiff’s First Motion to Compel Discovery [Doc. #101] as it pertains to this remaining issue is GRANTED, in part.

         I. Background

         Plaintiffs, franchisees of defendant Automotive Technologies, Inc., (“ATI”), have brought this action for breach of contract, misrepresentation, unjust enrichment, and unfair trade practices. [Doc. #114]. On October 30, 2015, the parties filed a Joint Report of Rule 26(f) Planning Meeting that set forth a protocol for the preservation and disclosure of ESI. [Doc. #56]. Since then, the parties represent that they have met and conferred multiple times over the course of this litigation in an effort to come to a mutually agreeable list of ESI search terms and custodians. Their efforts are evidenced by affidavits and copies of correspondence attached to both plaintiffs’ motion and defendant’s response. [Docs. #101-2; #117-3, #117-4, #117-5, #117-6]. However, the parties are unable to come to a consensus as to how many and which custodians should be included in a search for ESI.

         The parties have previously agreed to the search of the electronic files of seven custodians: (1) Joe Johnson, President of ATI; (2) Michael Broe, an Executive Vice President; (3) David Staszewski, an Executive Vice President; (4) Kevin Sinclair, former President of ATI; (5) Donald Josephson, former General Counsel of ATI; (6) Susan Suhr, former Chief Administrative Officer; and (7) Steve Lewkowicz, former Chief Financial Officer. [Doc. 11-7 at 3, (“Huelin Aff.”)].[1] Plaintiffs now seek an Order compelling defendant to search six additional custodians: (1) Vardan Babajanyan, (2) Colin Darling; (3) Andrew Petardi; (4) Cynthia Wendt; (5) Joanne Miano; and (6) Dave Haryasz.[2]

         II. Legal Standard

         Rule 26 of the Federal Rules of Civil Procedure governs the discovery of ESI. Rule 26(b)(2)(B) provides:

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery ... the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Fed. R. Civ. P. 26(b)(2)(B). As the Advisory Committee commented, “[u]nder this rule, a responding party should produce electronically stored information that is relevant, not privileged, and reasonably accessible[.]” See Fed.R.Civ.P. 26(b)(2) advisory committee’s note to 2006 amendment.

         Thus, “[o]n a motion to compel discovery or for a protective order, a trial judge must ask (1): Has the party resisting discovery shown that the information in question is ‘not reasonably accessible because of undue cost’?(emphases added), and (2): Nonetheless, has the party requesting discovery shown ‘good cause’ for that discovery?” Bagley v. Yale Univ., 307 F.R.D. 59, 65 (D. Conn. 2015) (quoting Fed.R.Civ.P. 26(b)(2)(B)).

         III. Discussion

         Plaintiffs have requested the inclusion of six additional custodians in the ESI search, arguing that they “are believed to have been involved in both decision making and day to day operations relevant to the claims and defenses raised in the litigation.” [Doc. #101-1 at 14]. Plaintiffs argue that the custodians should not be limited to decision-makers - that, in essence, lower-level employees may have been “conduits of relevant information” and a search of their electronic files may be the only means by which to obtain said information. Id. at 15.

         On the record at the conference, plaintiffs specifically referenced proposed custodians Dave Haryasz and Vardan Babajanyan, arguing that both were on the “Five-percent Committee, ” a committee that was involved in determining whether or not to withhold the Installment Offset Commission. Plaintiffs argued that they have reason to believe that Mr. Babajanyan was involved in discussions about commissions during the relevant timeframe, and therefore his files may contain information relevant to plaintiffs’ claims of fraud and misrepresentation. Plaintiff also discussed Cynthia Wendt, a paralegal, arguing that as a lower-level employee, her files may contain information that may have been communicated verbally from decision-makers.

         Defendant objects to adding the proposed custodians, primarily on two bases. First, defendant argues that a search of the emails of these individuals, who are not decision-makers, would not produce any relevant information that has not already been exchanged. [Doc. #117 at 11-13]. Defendant claims that most of these individuals reported to the higher-level custodians that they have already searched, so a significant number of their emails would be duplicative, and any unique emails would not be of particular value. Second, defendant contends that searching the files of these six additional custodians would be overly burdensome, resulting in tens of thousands of additional documents and hours of costly review. Defendant’s claim of burden is based in part on the finding that a test search of two of the proposed custodians “captured 51, 583 ...

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