How does a Court decide if there is merit for a motion to compel seeking an additional search for electronically stored information when custodial self-selection is involved?

How Much Custodial Self-Selection is Too Much?

Author: Rachel Smith
Case Citation: Mirmina v. Genpact, LLC, Civil Action No. 3:16-CV-00614 (D. Conn. July 27, 2017)
Employee/Personnel/Employer Implicated: Employer and Employee
eLesson Learned: A District Court denied the Plaintiff’s motion to compel for an additional discovery search, and found that the reliance of an employee’s self-selection of relevant documents was appropriate and sufficient under the circumstances.

In this case, originally a case about employment discrimination, the Plaintiff filed a motion to compel additional searches for electronically stored information (ESI) by the Defendant. The basis for this motion was that the Plaintiff had concern that relevant documents were being withheld and were not produced in discovery. The Plaintiff’s counsel had no reason to believe this allegation, other than the fact that an employee was involved in self-selection of her relevant emails for production in discovery.

The Defendant defended the validity of its approach by arguing that its in-house counsel: (1) issued a timely and detailed litigation hold to potential custodians of ESI, directing the preservation of any records and documents that might pertain to plaintiff’s claims; (2) gave instructions to the ESI custodians regarding searches and specific search parameters; (3) explained the importance of a thorough search to the ESI custodians; and (4) provided guidance when questions arose during the search.

The Court accepted that an employee was involved in the selection of her relevant documents because of the close involvement of both in–house and outside counsel. The defendants also swore that all “materials have been disclosed”. Given that the Plaintiff did not give any supporting case law or evidence for its allegation, the Court dismissed the motion then as “mere speculation.” The Court for many reasons held that an additional search was not required and denied the plaintiff’s motion.

This decision provides some protection to litigants who choose to rely on a custodian to retrieve relevant documents, allowing conservative e-discovery and litigation costs. However, parties who rely on self-selection must take appropriate precautions, such as closely working with counsel to ensure a thorough and complete search. This solution to rising litigation and e-discovery costs is not always advisable, particularly in situations where the custodian self-selecting has a strong and known incentive to no produce all relevant information.

Rachel Smith is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010.

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