In this case, the discovery process broke down so completely that the court ordered specific discovery. It also prohibited the parties from conferring further about the scope of production.
This employment discrimination case began when the plaintiff, Kimberly Sue Bird, sued her former employer, Wells Fargo Bank. Bird alleged that Wells Fargo terminated her based on her age and gender and breached her employment contract. Wells Fargo countered that it had fired her for failing to comply with its security policy.
The court observed that, despite numerous discovery conferences, it “is as if this case has not yet had its rule 26(f) conference.” The parties have apparently not reached a meaningful agreement “long after such matters should have been resolved.”
For example, Bird indicated that she wanted to complete nine depositions. However, mere weeks before the close of discovery, she had “not yet noticed any deposition.” For its part, Wells Fargo declined “to provide any information regarding the person who replaced” Bird. The bank also refused to provide any documents until Bird submitted a complete list of search terms and custodians. Wells Fargo threatened that if Bird did not provide that list by a specific time, it would void their agreement.
At the start of discovery, both parties had “agreed to preserve any relevant electronically stored information.” Only after the initial discovery deadline had passed and the court had ordered a joint discovery statement did Wells Fargo admit that it had “purged [Bird’s] email box following her termination.” Wells Fargo first disclosed this fact to Bird “the day before the joint statement was due” to the court. Wells Fargo did not indicate whether it could restore Bird’s emails. However, the bank claimed it would take six to eight weeks to collect and review the other requested information.
Despite its failures, Wells Fargo declared it would not “search for further responsive documents” until the parties agreed on the scope of discovery. Wells Fargo also threatened that it “reserve[d] the right to … shift all fees and costs” for discovery to Bird.
The court first noted that the “purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Thus, “the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons.”
Here, the court concluded that “discovery … has completely broken down.” It accorded the blame to both parties. The court agreed that Bird had “taken extreme positions regarding the scope of discovery” but described the bank’s approach as troubling.
Specifically, the court found that Wells Fargo had “taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms.” Additionally, Wells Fargo’s threats to have Bird pay its costs lacked “any legal justification.” The court concluded that Wells Fargo’s “dialogue is not professional and not a good faith attempt to meet and confer.”
Both parties had ignored the court’s previous “guidance on the scope of discovery.” Moreover, neither suggested “any constructive way forward.” Therefore, the court ordered both parties to not further engage, meet or confer. Instead, the court devised its own discovery plan. The court ordered Wells Fargo to provide, among other documents, Bird’s entire personnel file, all documents concerning her termination and any disciplinary actions and information about her replacement as well as every other employee who had violated Wells Fargo’s security policy. The court specified when Bird could file for sanctions if Wells Fargo failed to provide that discovery or was “unable to restore or replace” her emails.
Takeaways to ensure better ediscovery outcomes
Here, the court clearly took offense to Wells Fargo’s unprofessional tone and unfounded threats. The lesson to learn is simple but not always easy to follow: conduct discovery in good faith.
Don’t wait for the other side to be reasonable to comply with your own discovery obligations. Make relevant materials available promptly and continue to supply information as you obtain it. If you learn that information has been lost or destroyed, immediately advise your opponent and the court and outline your restoration plans. Finally, maintain a civil tone in communications.