Court allows “aggressive” timeline despite objections from the opposing party because compliance was possible with sufficient time and resources

How aggressive is too aggressive for an ESI discovery timeline?

Author: Tracy F. Buffer
Case Citation: Rabin v. Pricewaterhousecoopers LLP, 2017 U.S. Dist. LEXIS 125404 (N.D. Cal. Aug. 08, 2017).
Employee/Personnel/Employer Implicated: Professional services firm
eLesson Learned: Even if a party’s ESI discovery timetable is deemed “aggressive” by the court, the court still can allow it. Therefore, parties must be willing and able to complete a speedy and effective discovery process.
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In this case, out of the Northern District of California, the parties engaged in a dispute regarding ESI discovery. The parties agreed on the general ESI process, but issues arose pertaining to timing. Plaintiffs wanted discovery to begin on a rolling basis, which would have allowed them to use the discovery in their conditional certification motion. Defendant had two objections. First, it claimed that the Plaintiffs were not entitled to get discovery prior to the certification. Second, it asserted that the ESI discovery process could not be completed in the timeframe the Plaintiffs put forth.

The court held that the Plaintiffs were entitled to ESI discovery in order to assist them in predation of their conditional certification motion. When coming to this the decision, the court stated it placed little weight on discovery letters between the parties that might have indicted whether they thought discovery was to begin before or after the motion because, in such a large case, positions may shift over time. In addition, the court noted that the case law the parties cited does not help determine whether the Plaintiffs are entitled to discovery before their motion. The court also points out that none of the cases the parties cited were from the Ninth Circuit, and the cases they did cite did not provide a definitive answer. As the defendant has not cited any case that forbids them from doing so, the court saw no reason to not allow the Plaintiffs to obtain and utilize any ESI discovery to support their motion for certification.

As to the Defendant’s claim that it could not begin ESI discovery on a rolling basis, the court held that the Defendant had not sufficiently convinced it that the in-depth nature of the discovery required a delay. As the parties have agreed to the search terms and the development of the models should not take too long, no delay appeared to be necessary. As to the Defendants argument that validating the results of the model may take additional work, the court stated it will not elongate the discovery process based on an unsubstantiated possibility that there will be problems with the results. The court saw no reason why the process cannot be completed within the few weeks, even with time for attorney review. 

This decision teaches us that even if a party’s ESI discovery timetable is deemed “aggressive” by the court, the court still can allow it. Therefore, parties must be willing and able to complete a speedy and effective discovery process.

Tracy F. Buffer will receive her J.D. from Seton Hall University School of Law in 2018. She received her B.A. from Rutgers University in New Brunswick, New Jersey in 2015.  After graduation from law school, Tracy plans to practice corporate law.

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