Extortion by E-discovery: Court Grants Protective Order

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Rodriguez-Torres v. Governmental Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. Jan. 20, 2010)

In an employment discrimination case, plaintiff requestors sought emails and calendar entries in native format as follows:

For each year 2007, 2008, 2009, produce in native electronic format with its original metadata all e-mail communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriguez, both inbound and outbound from co-defendant GDB’s messaging system servers. Particular attention to the following definition of extract key-words needs to be exercised: a) identification of Rodriguez by different variations of her name; b) designation of pejorative and derogatory terms typically used to demean persons according to their age and gender (including but not limited to phrases such as: vieja, nena, arrugas, anos, edad, etc.); c) designation of phrases which could be referring to the current and past litigations, and which could suggest retaliatory animus or activities (including but not limited to phrases such as: demanda, caso, testigos, demandada, plaintiff, etc.); d) designation of record custodians to include all co-defendants, and other unnamed GDB employees known to tease, insult and taunt Rodriguez based on her physical appearance and age….

Id. at *6-*7. Defendant producer GDB objected on the basis of overbreadth, and argued “that the requests by Plaintiffs are likely to produced hundreds if not thousands of documents which will include irrelevant, confidential and potentially privileged information.” Id. at *7. In a report commissioned at the court’s request, a consultant estimated the cost of production at $35,000.

The court found that this amount “is too high of a cost for the production of the requested ESI in this type of action.” Id. at *9. The court was also concerned about defendants’ cost of privilege review. In addition, the court found that plaintiffs had not demonstrated good cause for the production. Plaintiffs had “anticipate[d] finding communications showing discriminatory animus such as derogatory and demeaning references, exclusion from meetings, communications and work activities, and general disregard for Plaintiff Rodriguez’s abilities.” Id. at *10. However, the only basis provided by plaintiffs were three articles “which suggest that e-mail encourages senders to write unguarded, unwise and often inappropriate comments.” Id. The court found that “[j]ust because e-mails are more likely to lead to inappropriate comments is not a sufficient basis to believe that the ESI requested here will lead to the discovery of the information Plaintiffs claim they will discover.” Id. at *11. It concluded that “Plaintiffs’ request is merely a fishing expedition to find out if there is any evidence that supports their claim. Discovery is not meant to serve as a fishing expedition. As such, the Court concludes that this is not good cause.” Id.

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