Proportionality Before Dessert: Focusing Review on Relevant and Proportional ESI

Proportionality in any case is a balancing of interests—whether the burden or expense of the proposed discovery outweighs its likely benefit. A basic question to ask of all discovery, is how does the requested information help resolve the claims in the case? What is the cost of acquiring the information? What is the value of the case? Knowing the answers to these questions can help a Court decide whether to order discovery, modify requests for production, or limit discovery.

Measuring the Scope of Discovery

In a 2017 lawsuit over alleged violations of the Americans with Disabilities Act, the Defendants, the Cheesecake Factory, Inc., brought a motion to compel discovery responses pertaining to the Plaintiff’s employment history going back over a decade from both the Plaintiff and third-parties.1 The Plaintiffs produced discovery pertaining to prior employment dating back to 2004. The Plaintiffs’ claims in the lawsuit included back pay estimated at $480 (plus interest), compensatory damages for emotional distress, and punitive damages.

The Plaintiffs argued that a mere $480 in back pay was not proportional to the Defendants seeking discovery from the Plaintiffs’ former employers for over a decade. On its face, simply looking at $480 in back pay does not sound proportional to the expense of retrieving discovery going back a decade. However, the Court pointed out that the discovery was not for the claim of back pay, but was related to the other claims and defenses in the case. As such, evidence of how the Plaintiff interacted with prior employers concerning his disabilities was both relevant and proportional to the ADA claims in the lawsuit. As this case suggests, low damages on one claim cannot be used as a shield from discovery of information related to other claims.

However, in this case, the Court held that the Defendants’ discovery requests were overbroad for other reasons: the requests were not limited to employment records; and the requests were in excess of ten years.

Discovery Strategy for Individual Plaintiffs

Litigation can get expensive fast. Larger parties may be able to comfortably absorb litigation costs, but it can be challenging for individuals in employment, civil rights, or family law cases. One strategy to control litigation expenses is to focus specifically on the data that is relevant and proportional.

In a case such as the above, it is very possible a similar plaintiff could have responsive employment information in personal email messages. It is also highly probable that an individual using a webmail account could have email going back ten years. Not many individuals have personal data retention and destruction policies. They just don’t delete email or randomly delete messages after they are read.

One collection strategy for a case involving a plaintiff with webmail is for the collection expert to do a targeted email collection for emails from prior employers based on domain names. This would collect messages and attachments that should be both relevant and proportional to the case. However, it might not get all responsive emails, as there could be work related emails sent between people who do not have email accounts from their employers.

Another option is to do a collection and then exclude what is obviously irrelevant, such as news alerts, newsletters, or marketing emails. Other addresses could be used as a basis for inclusion or exclusion within a collection.

As the relevant and proportional dataset is exported to Everlaw for review, similar search strategies can be used for reviewing for responsiveness. In the above case, the Plaintiff identified data ranges during which he was employed at specific companies. A search could be created within the dates of employment with content searches for specific keywords, such as company names, “performance reviews,” or similar terms.

The same search strategy could also be done to find all messages from anyone with the domain address of a specific employer.

Many companies alert employees of paychecks with email pay stubs and electronic W2s. Searches can be created to identify this information in a variety of ways, from content searches for EINs to specific searches for payment.

Cases such as the above could seem onerous to an individual party. However, with analysis of what is truly needed to prove the claims or defenses, along with strategic searches, document review can be focused on relevant and proportional ESI. Determining the scope of discovery, such as relevant dates, specific individuals, email addresses, and the factual allegations of the lawsuit, can empower lawyers to find what they need to vindicate their client’s claims.

1EEOC v. The Cheesecake Factory, Inc., 2017 U.S. Dist. LEXIS 144391 (W.D. Wash. Sep. 6, 2017).