Emanuel v. Gap, Inc.

Background

Plaintiffs Desa Emanuel and Lacrena Taylor objected under Federal Rule of Civil Procedure 72 to an oral discovery ruling issued by Magistrate Judge Lisa M. Smith on August 10, 2020. The ruling concerned the scope of discovery related to possible spoliation, meaning the loss, destruction, or inadequate preservation of evidence. Plaintiffs had been considering a motion for sanctions under Rule 37 based on alleged destruction of electronically stored information.

The parties primarily disputed whether devices used by Ms. Russo and Ms. Borowski had been properly preserved and whether Plaintiffs could obtain spoliation-related discovery from seven additional custodians. At an earlier conference, the Court had denied Plaintiffs’ request to seek sanctions without prejudice to renewing it after additional discovery. Judge Smith later required Plaintiffs to provide information about the proposed custodians and their proposed search terms.

Judge Smith’s Discovery Ruling

Judge Smith allowed Defendants to apply Plaintiffs’ “Preservation” and “Spoliation” search terms to Ms. Russo and Ms. Borowski’s devices. She rejected the proposed “Data/Devices” and “Litigation” search terms because they were too broad and would be extraordinarily expensive. She also declined to allow spoliation-related discovery from the other proposed custodians. Regarding Mr. Latter, she found that Plaintiffs had not shown that his information was unique, directly relevant, or known to be relevant before any wiping or destruction of records. She characterized broader discovery as a “fishing expedition.”

Standard of Review

Because Judge Smith’s ruling concerned discovery and was non-dispositive, Rule 72(a) allowed Plaintiffs to object. The district court could modify or set aside the ruling only if it was clearly erroneous or contrary to law. The court explained that discovery rulings receive substantial deference and that the party seeking to overturn such a ruling bears a heavy burden.

Analysis

The court found no clear error in Judge Smith’s limits on the search terms for Ms. Russo and Ms. Borowski’s devices. It agreed that several proposed terms, including “data,” “computer!,” “texts,” “suit,” and “action,” were overbroad and that Judge Smith reasonably selected terms tailored to the spoliation issue.

The court also found no clear error in denying discovery from the seven additional custodians. Plaintiffs had not shown that those custodians had anything to do with spoliation, and they had not established the required basis for additional discovery concerning Mr. Latter. The court further declined to order Defendants to provide Plaintiffs with a report showing the results of searches for the additional custodians because Plaintiffs identified no legal authority establishing a right to such a report.

Plaintiffs also raised, for the first time in reply, a dispute about Defendants’ alleged refusal to produce a witness concerning policies and procedures for company computers, cell phones, and other electronic devices. The court did not resolve that issue because it had not first been decided by Judge Smith, who had been assigned all pretrial matters, including discovery.

Disposition

Judge Halpern affirmed Judge Smith’s August 10 discovery ruling and denied Plaintiffs’ Rule 72 application in its entirety. The conclusion states that Plaintiffs’ request to overrule Judge Smith’s order was denied, and the Clerk was instructed to terminate the pending motion.