United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO COMPEL [DOC.
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
Scott Mirmina (“plaintiff”) has filed a Motion to
Compel seeking an order requiring Defendant Genpact LLC
(“defendant”) to conduct an additional search for
electronically stored information (“ESI”). [Doc.
#63]. Defendant has filed a Memorandum of Law in Opposition
to plaintiff's motion. [Doc. #67]. For the reasons set
forth below, plaintiff's motion is
26(b)(1) of the Federal Rules of Civil Procedure sets forth
the scope and limitations of permissible discovery:
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 discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting
discovery bears the burden of showing why discovery should be
denied.” Cole v. Towers Perrin Forster & Crosby,
256 F.R.D. 79, 80 (D. Conn. 2009).
4, 2017, plaintiff filed a Motion to Compel additional
responses to certain discovery requests. See Doc. #41. On
June 13, 2017, this Court issued a Ruling denying
plaintiff's motion, except to the extent the motion
requested “materials described in the Initial Discovery
Protocols that have not yet been disclosed.” Doc. #58
at 11. The Court further required defendant to comply in full
with the Initial Discovery Protocols immediately, to the
extent it had not already done so. See id.
14, 2017, plaintiff filed the instant motion. See Doc. #63.
Plaintiff states that he “is concerned” that
defendant has “withheld communications” that
would be responsive to the Initial Discovery Protocols. Doc.
#63-1 at 2. Plaintiff argues, in essence, that
defendant's search for ESI was insufficient because
counsel relied upon an employee directly involved in the
underlying claims of the suit to search her own emails for
responsive documents. See Id. Plaintiff cites no
case law in his supporting memorandum. See Id.
Defendant opposes plaintiff's motion, asserting that
plaintiff's concerns are unfounded because the search for
responsive records was coordinated and overseen by counsel.
See generally Doc. #67. Defendant has provided an affidavit
of defendant's in-house counsel detailing the steps that
counsel took to ensure that a proper search for ESI was
A party's discovery obligations do not end with the
implementation of a “litigation hold” - to the
contrary, that's only the beginning. Counsel must oversee
compliance with the litigation hold, monitoring the
party's efforts to retain and produce the relevant
documents. Proper communication between a party and her
lawyer will ensure (1) that all relevant information (or at
least all sources of relevant information) is discovered, (2)
that relevant information is retained on a continuing basis;
and (3) that relevant non-privileged material is produced to
the opposing party.
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432
(S.D.N.Y.2004). “Responsibility for adherence to the
duty to preserve lies not only with the parties but also, to
a significant extent, with their counsel.”
Electrified Discounters, Inc. v. MI Techs., Inc., No.
3:13CV1332(RNC), 2015 WL 2383618, at *2 (D. Conn. May
19, 2015) (quotation marks and citation omitted).
Indeed, for the current “good faith” discovery
system to function in the electronic age, attorneys and
clients must work together to ensure that both understand how
and where electronic documents, records and emails are
maintained and to determine how best to locate, review, and
produce responsive documents. Attorneys must take
responsibility for ensuring that their clients conduct a
comprehensive and appropriate document search.
Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D.
429, 437- 38 (S.D.N.Y. 2010); see also Fed.R.Civ.P. 26(g)
(requiring that counsel make a “reasonable
inquiry” prior to certifying that a discovery response
is “complete and correct as of the time it is
has described the steps that counsel took to coordinate and
supervise the search for ESI in this matter. See Doc. #68 at
1-2. In-house counsel: (1) issued a timely and detailed
litigation hold to potential custodians of ESI, directing the
preservation of any records and documents that might pertain
to plaintiff's claims; (2) gave instructions to the ESI
custodians regarding searches and specific search parameters;
(3) explained the importance of a thorough search to the ESI
custodians; and (4) provided guidance when questions arose
during the search. See Id. In-house counsel affirms
that he forwarded the results of the searches to outside
counsel, who in turn conducted a review for processing and
production. See Id. Counsel for defendant has
represented that a comprehensive search was conducted for all
documents subject to production under the Initial Discovery
Protocols, and all responsive documents have been disclosed.