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Parties requesting email frequently ask for “all” relevant emails. Litigants certainly want all relevant email messages, but “all” could result in hours, days, or weeks of document review. Proportionality should narrow what is produced to a requesting party to what is actually at issue in the lawsuit.
In an employment case with allegations of a sexually-hostile work environment and a retaliatory discharge, requests for production highlighted the need for proportionality. Setting up useful searches during your document review and early case assessment can help narrow the scope of the request to only that which is proportional.
“Produce All Email”
The Plaintiff was an attorney at a North Carolina law firm. The Defendant, the law firm. The Plaintiff’s Requests for Production 9 to 11 sought all emails between the Plaintiff and three other people. The argument for the production of the emails was that they could include admissible evidence regarding her job performance, concerns about her manager’s unwanted advances, and the Defendant’s response to her concerns.1 The Defendants argued that the requests for all emails was not necessary, relevant, or proportional to the needs of the case.
The Court did not narrow the discovery requests and ordered the Defendant to supplement their production to “fully comply” with the discovery requests. Magistrate Judge David Keesler stated that the dispute could have been resolved between the parties with “minimal effort.” Additionally, Judge Keesler encouraged the parties to consider “whether there is a less burdensome way to satisfy Plaintiff’s need to review the emails in question, such as agreeing on certain search terms to produce relevant emails and/or to exclude emails the parties’ agree are not subject to discovery here.”
Plaintiff’s Request for Production 23 sought email exchanges between the Plaintiff and four other employees. The relevancy of the emails was the Plaintiff stated she communicated her concerns about her manager’s behavior with the employees. The Court ordered the Defendants to produce the emails, unless the parties could agree on a process to limit the emails to communications pertaining to the manager.
Proportionality in Practice
Many cases where a requesting party states “produce all email” end with the Court narrowing the requests for production to what is proportional to the needs of the case. This case is different, with the Court ordering the production of all emails between specific individuals. Moreover, the process to narrow the requests is kicked back to the parties to meet and confer over the scope.
Determining the scope of discovery should happen at a Rule 26(f) Conference. For a dispute to result in a motion to compel and the Court to place the burden back on the parties is a deviation from the majority of cases since the 2015 Amendments to the Federal Rules of Civil Procedure went into effect.
A responding party has an obligation to respond to even overly broad discovery requests. That requires responding with that they think is relevant and proportional to the claims or defenses in the lawsuit. While that can result in a motion to compel, the burden would be on the requesting party to argue a production was inadequate.
Responding to the Discovery Requests
Proportionality is always relevant when responding to a request for production. A party responding to a case like this one could begin with a search for emails between the plaintiff and the specific individuals.
Dates could be added to narrow the search hits. For example, if the complaint alleges when the Plaintiff was first harassed, use that date until the date of termination to define the time period of the case.
Content searches could be added, such as the manager’s name within specific proximity to phrases common in an employment harassment case.
How the Defendant responded to the Plaintiff’s complaints is highly relevant to the lawsuit. Reviewing attorneys could set up searches between the three employees within the time period of the case. A broad content search could be run with the Plaintiff’s name to identify emails for review. This search could be even further refined to identify phrases from complaints to be searched between the Defendant’s three employees subject to the request.
Keep it Proportional
Proportionality helps avoid situations where a party must produce “all email” between specific individuals. Is it possible every email message is both relevant and proportional to the needs of the case? Yes, but it’s not probable. However, that does mean it is the starting point for document review, not the end point for what is produced to the requesting party.
1Greene v. Shapiro & Ingle, LLP, 2017 U.S. Dist. LEXIS 190237, at *6-9 (W.D.N.C. Nov. 16, 2017).
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