e-Lessons Learned

In Newman v. Borders, Inc., the United States District Court for the District of Columbia held that because plaintiff failed to notify defendant in a deposition notice that questions in a deposition would pertain to the defendant book’s email policies (or any electronically stored information (ESI) in general), plaintiff was not entitled to take further depositions despite the designated witness’s lack of knowledge regarding that subject matter. However, the Court further held that due to both parties’ failures to try hard enough to resolve the dispute and because discovery regarding document retention policies is a legitimate request, defendant was nonetheless ordered to answer specific questions posed by the Court regarding its email retention policies.

The lesson here is twofold: If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions. But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes.

Plaintiff filed a 42 U.S.C.A. § 1981 claim, alleging that a stop by a store detective employed by Borders on December 2, 2005 was motivated by racial discrimination. In response, defendant contends that plaintiff was questioned because the store detective saw him “place an item from the shelf of the store into a bag he brought into the store.”

Plaintiff served defendant with a notice to take a deposition pursuant to Rule 30(b)(6), which requires (1) that the organization being served designate a witness who can speak knowingly regarding the topic, and (2) that the party serving the organization define as clearly as possible the topics that will be covered in the deposition.

Plaintiff’s notice failed to mention the store’s email policies or any ESI in general; and instead stated only that the deposition would include discussion of defendant’s general document retention policies. Defendant’s designated witness was unable to clearly articulate defendant’s document retention policies regarding email, and plaintiff therefore moved to have defendant designate another 30(b)(6) witness.

The Court first found that a reasonable lawyer reading plaintiff’s deposition notice would not be able to conclude that defendant’s email retention policies were going to be topics of discussion. Further, the Court found that given the vast amount of business transactions conducted electronically, plaintiff should have specified that the email retention policy would be a subject of the deposition. Lastly, the Court noted that there was no evidence that defendant had engaged in any behavior to suggest it knowingly destroyed any pertinent emails or that it failed to search conscientiously for relevant emails.

Despite the Court’s findings, the Court ultimately found that defendant’s document retention policies were relevant to the dispute and that the parties failed to try hard enough to resolve the issue. Pointedly noting that “the potential legal fees in this case, thanks to the many discovery disputes, will dwarf the potential recovery,” the Court exercised its discretion to end the dispute by ordering defendant to answer a series of questions posed by the Court regarding email retention policies.

While plaintiff benefited from the Court’s order, he was ultimately denied the opportunity to depose a second witness using his own questions.

Article posted on June 29, 2010 at 11:41 PM |              More... 
Tagged as: Accessibility, Cost Sharing & Shifting, Meet & Confer, Procedure.
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