United States District Court, D. Connecticut
FAMILY WIRELESS #1, LLC, et al.
AUTOMOTIVE TECHNOLOGIES, INC.
RULING ON MOTION TO COMPEL DISCOVERY [DOC. #
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.
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
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
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.”)]. 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
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
“[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.
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.
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.
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 ...