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Bird v. Bank

United States District Court, E.D. California

March 31, 2017

KIMBERLY SUE BIRD, Plaintiff,
v.
WELLS FARGO BANK, Defendant.

          ORDER REGARDING SCOPE OF DISCOVERY (ECF NO. 20)

         This case proceeds on Kimberly Sue Bird's (“Plaintiff”) complaint against Defendant Wells Fargo Bank (“Defendant”), which was removed to this Court on August 1, 2016. Plaintiff was terminated from Defendant's employment on May 6, 2014. Plaintiff alleges that Defendant discriminated against her because of her age and gender, and additionally breached Plaintiff's employment contract. Defendant claims that “Plaintiff was terminated after she failed to comply with Defendant's Information Security Policy and Guidelines and it was determined that he conduct resulted in the theft of private and confidential business information.” (ECF No. 6, p. 2).

         This order provides direction regarding the scope and timing of discovery in this matter. As described extensively on the record during conferences on March 1, 2017 and March 30, 2017, discovery in this case has broken down. The parties have been unable to meaningfully meet and confer and reach any agreement on the scope of discovery, long after such matters should have been resolved. Accordingly, the Court will order discovery take place as described in this order in order to move this case forward as efficiently as possible.

         I. BACKGROUND

         The Court and parties held a scheduling conference in this case on October 13, 2016. In advance of the scheduling conference, the parties submitted a Joint Rule 26(f) report jointly proposing a deadline for non-expert discovery cut-off of March 6, 2017. (ECF No. 6, p. 4). In that statement, the parties indicated they “do not anticipate this action will involve significant electronic discovery issues. However, the parties have both agreed to preserve any relevant electronically-stored information. To the extent Plaintiff seeks discovery of emails, the parties will meet and confer on proposed search terms and custodians.” (ECF No. 6, p. 4). Following the conference, the Court set the deadline for non-expert discovery for March 6, 2017 as requested. (ECF No. 8)

         The Court received the first indication that all was not well through the parties' Joint Mid-discovery conference report, dated February 14, 2017, just a few weeks before the nonexpert discovery cut-off. (ECF No. 16). Plaintiff asserted in that joint statement that it still intended to take the depositions of nine witnesses, and was “drafting a met [sic] and confer letter to Defendants concerning their responses and the scope of ESI discovery.” Defendants asserted that “Plaintiff has not yet noticed any deposition. Plaintiff has not yet reached out to Defendant to meet and confer regarding the scope of ESI discovery.” Plaintiff also indicated that Defendant was refusing to provide any information regarding the person who replaced Plaintiff in her job. The Court held a mid-discovery status conference on February 21, 2017 as previously set and scheduled a more extensive discovery conference on the record for March 1, 2017 to hopefully resolve any open issues regarding the scope of discovery.

         During the March 1, 2017 conference, the Court heard argument and provided detailed guidance on the scope of discovery on the record for approximately 90 minutes. The Court then ordered the parties to meet and confer regarding the scope and terms of ESI discovery with the help of the Court's guidance over the following two weeks. The Court requested a status report on March 15, 2017 as well as proposals for a new schedule to permit discovery to be completed in a timely manner. (ECF No. 19) The Court also set a hearing on any outstanding discovery motions for April 14, 2017.

         According to documents filed with the Court (ECF No. 20-1), on the afternoon of that conference, March 1, Defendants wrote to Plaintiff to confirm that Plaintiff's deposition would take place one week after Defendants produced documents regarding five loans at issue in the case, certain text messages, and “Emails to/from Plaintiff that include certain custodians/key terms, which you have agreed to provide ASAP, ” and demanded a list of such terms from Plaintiff by close of business on March 3, 2017. Defendant concluded the correspondence by stating “If you breach the agreement and fail to provide the list by COB on Friday then our agreement regarding the documents discussed above is null and void ab initio and we will once against take these issues to Judge Grosjean and will move to compel Plaintiff's deposition and seek sanction.” (ECF No. 20-1, p. 9).

         Plaintiff sent Defendant a meet and confer letter later that day, March 1, 2017, (ECF No. 20-1), and another meet and confer letter on March 2, 2017 but did not receive a prompt response. On March 8, Defendant wrote to Plaintiff saying “I do not have this information now, ” “we will not be able to produce any ESI by March 10 or March 17, ” and claiming that “the parties have nearly a month to resolve outstanding discovery issues and file briefing regarding a MTC.” (ECF No. 20-1, p. 6). It does not appear that any telephonic meet and confer took place.

         The day before the joint statement on meet and confer was due with the Court, Plaintiff's counsel wrote to Defense counsel explaining that Defendant had not responded to Plaintiff's meet and confer efforts, and stating “Our understanding is that the Court intended the parties to have completed our meet and confer to the extent possible by this point. As this has clearly has [sic] not happened, we are concerned that we will not be in a position to comply with the Court's order in a timely manner.” (ECF No. 20-1, p. 5). Defendant finally provided its “position with regard to ESI” on March 14, 2017 at 4:33 pm. (ECF No. 20-1, p. 3). Defendant's position included the following:

• “In accordance with its neutral practice, Wells Fargo purged Plaintiff s email box following her termination. Therefore, we are unable to search Plaintiffs mailbox and complete ESI Search No. 1.”
• Regarding emails between Plaintiff and her supervisors, Defendant emphasized that “Wells Fargo reserves its right to request that the search be further limited once we have pulled the emails and determined how many are responsive to your search request.”
• “Please be advised that due to Wells Fargo's internal processes, and significant queue of other data requests, it will take 6-8 weeks for it to pull the requested ESI. Moreover, Wells Fargo will still need to review the ESI for privilege, privacy and confidentiality.”
• “Wells Fargo reserves the right to . . . shift all fees and costs incurred in the collection, review, and production of ESI to Plaintiff and Plaintiffs counsel.”

         The parties filed a joint statement regarding discovery on March 16, 2017. (ECF No. 20) Far from reflecting the results of two weeks of meaningful meet and confer consistent with the Court's extensive guidance on the record, the 15-page statement revealed a continued lack of agreement on the scope of discovery and obstacle to even beginning the collection and review process. Among other things, the joint statement revealed to the Court:

• Defendant had destroyed Plaintiff s own email. (ECF No. 20, p. 4 (“in accordance with its neutral practice, Defendant purged Plaintiffs email box following her termination. Therefore, Defendant is unable to search Plaintiffs mailbox and complete ESI Search No. 1”)). Defendant apparently first made this fact known to Plaintiff the day before the joint statement was due. Defendant could not yet say whether Plaintiffs email files could be reconstructed.
• Defendant represented it would take another 6-8 weeks to pull electronic mail from its system to even begin the process for attorney review and production, once such a scope is determined. Defendant proposed that “[o]nce Defendant has pulled the emails and determined the number of emails responsive to Plaintiffs searches, it proposes that the parties further meet and confer on ESI production.”
• Notwithstanding Defendant's delay and failure to commit to a date of production, Defendant claimed that non-expert discovery cut-off should not extend past June 7, 2017, i.e., approximately 11 weeks from the date of the joint report and presumably 3 weeks after Defendant had pulled the relevant documents to begin its internal review.
• Defendant reserved its supposed “right” to “shift all fees and costs incurred in the collection, review, and production of ESI to Plaintiff and Plaintiffs counsel.”

         The Court received further insight regarding Defendant's position in Defendant's formal discovery responses, which it requested at the hearing on March 30, 2017. For example, in response to Plaintiffs request for “ALL DOCUMENTS, COMMUNICATIONS OR ELECTRONICALLY STORED INFORMATION RELATING TO PLAINTIFF'S compensation, bonuses, and commissionable loans, ” Defendant agreed to produce Plaintiffs pay vouchers, offer letter, and compensation plan but stated “Defendant will not conduct a search for further responsive documents in the absence of an agreement with the demanding party as to the specific items requested, search terms, custodians, and temporal parameters of the search..... Defendant retains its right to shift costs of any further search required to Plaintiff.” In other ...


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