Court Denies Additional Search for Information Based Only on Speculation in Mirmina v. Genpact LLC, No. 3:16CV00614 (AWT), 2017 BL 260425 (D. Conn. July 27, 2017).
In this employment discrimination case, the court denied the plaintiff’s motion to compel additional discovery where the defendant’s in-house counsel had already conducted a “comprehensive search.” The plaintiff, Scott Mirmina, sued his former employer, Genpact LLC, for illegal discrimination. During discovery, Mirmina moved the court to compel “an additional search for electronically stored information (‘ESI’).”
Under Federal Rule of Civil Procedure 26(b)(1), discovery includes “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Here, Mirmina was “concerned” that Genpact had “withheld communications” that would fall within the scope of permissible discovery. Mirmina objected that Genpact’s counsel had allowed “an employee directly involved in the underlying claims” to search for responsive information within her own emails. Mirmina “cite[d] no case law” supporting his argument. Genpact submitted an affidavit from its in-house counsel “detailing the steps that counsel took to ensure that a proper search for ESI was conducted.”
The court noted that counsel must not only implement a litigation hold but must “oversee compliance” with its terms. Especially now, “in the electronic age, attorneys and clients must work together” to locate, preserve and provide relevant ESI in discovery. “Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate” search.
In this case, Genpact’s counsel “issued a timely and detailed litigation hold.” They also instructed custodians about how to search for discoverable ESI, “explained the importance of a thorough search” to those custodians and “provided guidance” as needed. The court was therefore “satisfied that proper steps were taken and that counsel has appropriately assumed responsibility for ensuring that a comprehensive search was conducted.”
The court observed that Mirmina’s argument that Genpact was withholding responsive communications was “based on nothing but speculation.” The court concluded that this speculation did not require Genpact to perform any additional searches. Therefore, in the absence of any evidence supporting Mirmina’s accusation of deliberate or negligent nonproduction, the court denied his motion to compel.
Takeaways on properly issuing legal holds
Follow the good example given by Genpact’s counsel here for creating a litigation hold and complying with discovery. Document your efforts thoroughly in case you need to explain your process to the court. If, on the other hand, you are in Mirmina’s position, offer some concrete evidence to support your request for additional discovery. Mere speculation that there must be something better that you haven’t found yet will not convince a court to order additional discovery.