Absence of a “smoking gun” doesn’t mean information is irrelevant

Equal Emp’t Opportunity Comm’n v. FedEx Ground Package Sys., Inc., No. 2:15-cv-256
(W.D. Pa. Mar. 21, 2018).

In this extensive employment discrimination case, the court denied the defendant’s motion to preclude discovery of 193 gigabytes of email data. It also refused to shift the cost of that discovery to the plaintiff. Although the defendant argued that this data, in essence, wasn’t worth the effort, the court sharply disagreed.

The Equal Employment Opportunity Commission (EEOC) brought this case against FedEx on behalf of more than 300 individuals nationwide, alleging that FedEx discriminated against its deaf and hard-of-hearing package handlers.

The parties engaged in numerous discovery discussions to determine appropriate custodians and keywords for searches. The EEOC requested approximately 193 gigabytes of email data, or around 360,000 emails, from 26 FedEx custodians.

FedEx objected and moved the court to preclude this discovery, making three arguments:

  1. Searching these emails would not yield enough “responsive and relevant documents to justify” the effort.
  2. The emails were “not reasonably accessible” under Federal Rule of Civil Procedure 26(b)(2)(B) because they were too voluminous for FedEx to manage in house.
  3. The burden was so great that, should the court order discovery, the EEOC should bear the cost.

To support its argument, FedEx reviewed a “statistical sample” of 1,061 emails. It claimed that after responsiveness and privilege review, only about 5 percent of those emails were discoverable, and most of the information in them had already been produced. After the EEOC reverse-engineered its sampling process, FedEx updated its numbers, stating that the responsive rate was 8.3 percent. FedEx also, tellingly, asserted that none of the discoverable emails contained any “smoking guns.” FedEx estimated the cost of searching the full 193 gigabytes of email at $28,907, plus nearly $3,000 per month to host the data.

The court began its analysis by noting that it had previously deferred its ruling in hopes that the parties could resolve their differences. Unfortunately, “pretty much just the opposite occurred” in this “relatively straightforward discovery dispute.” Instead of working cooperatively, FedEx “went to great lengths (and expense)” to establish the unreasonableness of the EEOC’s requests.

Using FedEx’s numbers — which the EEOC insisted were a “lowball” estimate — the court calculated that this email search would likely yield more than 30,000 responsive documents. The court seemed to marvel at FedEx’s extraordinary argument that the EEOC should be denied this volume of discoverable information because it would take some effort to produce it.

According to the court, the EEOC’s request was “facially within the scope of permitted discovery” and appeared wholly proportional to the size of the case. The court noted that the parties had jointly requested nearly four years of information. In short, they “clearly understood … that this was going to be a big case” that would take a proportionally large effort to litigate.

The court further pointed out “that FedEx incorrectly attempted to frame relevancy as a binary test where information is either irrelevant or a ‘smoking gun.’” Nor did the court accept FedEx’s “all or nothing” proposition “that all discovery … should be denied or cut off” simply because there is a cost associated with producing it. Additionally, FedEx could not use its own business decision “to store huge amounts of information … as a shield” against reasonable discovery requests.

The court held that the requested discovery was both “within the limits and scope of discovery” as defined by the Federal Rules of Civil Procedure and proportional to the size of the case. The court also declined to shift “the costs of sifting through the repositories that FedEx has elected to maintain” to the EEOC.

Therefore, the court denied FedEx’s motion.

Takeaways on Cooperating in Ediscovery

The court offered direct advice here while disparaging the “huffing and puffing” associated with ediscovery disputes. It observed that FedEx could have saved both time and money if it had “focused its considerable legal energy on working with the EEOC” to refine their search terms instead of litigating discovery. While you can’t force your opponents to cooperate, be sure that you do your part to invest in producing, rather than protesting, discovery.

Questions about effectively refining search terms? We’re here to help you understand your data so you can effectively cooperate with your opponent to define the scope of ediscovery.

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