Smith v. Pergola 36 LLC

Background

Joshua Smith and Cameron Niles sued Pergola 36 LLC and sought damages for alleged race discrimination. The parties filed cross-motions to compel discovery. The opinion addressed the discovery issues that remained after a telephone conference and supplemental briefing; the court referred the parties to the conference transcript for issues not addressed in the opinion.

Pergola’s request for the plaintiffs’ venue-related records

Pergola requested reservation documents, bills and receipts, credit-card statements, text messages, photographs, videos, emails, and social-media posts concerning the plaintiffs’ weekday-evening and weekend visits to bars, restaurants, clubs, lounges, nightclubs, dance halls, sports arenas, theaters, and strip clubs since January 21, 2022. The plaintiffs had agreed to produce some reservation records, credit-card statements with dollar amounts redacted, and certain social-media posts, but resisted producing Instagram stories, texts, and emails.

The court granted Pergola’s motion to compel. Because the plaintiffs sought substantial emotional-distress damages and alleged anxiety, social withdrawal, and loss of enjoyment connected to attending or avoiding such venues, the court held that targeted information about their experiences, communications, social-media activity, and spending could be relevant. The court rejected the argument that reviewing Instagram stories would be disproportionate, noting that even the plaintiffs’ highest estimate would involve slightly more than four hours of video review.

The plaintiffs’ request for searches of employees’ devices

The plaintiffs asked Pergola to search the electronic devices of current bouncers, security personnel, and managers for responsive documents. Pergola had agreed to search current managers’ devices using search terms and had agreed to instruct current security personnel to search for communications about enforcement of Pergola’s dress code, but it argued that broader searches of personal devices were invasive and disproportionate.

The court held that Pergola had control over responsive work-related communications on its current employees’ personal devices. The request was limited to communications made during employment and related to employment. The court also rejected Pergola’s argument that the search should be limited to communications mentioning the plaintiffs. Because the plaintiffs alleged a pattern of race discrimination, communications concerning similar conduct could be relevant to discriminatory intent and whether Pergola’s stated explanations were a pretext. The court granted the plaintiffs’ motion to compel insofar as Pergola had to produce responsive documents beyond those mentioning the plaintiffs, but it did not direct how Pergola or its counsel had to conduct the review.

The search for “Ghetto”

The plaintiffs asked Pergola to expand its search of previously searched devices to documents containing the term “Ghetto,” based partly on a communication that referred to denying entrance to a “ghetto” woman. Pergola agreed to conduct that additional search. The court therefore considered this portion of the motion to compel moot.

Pergola’s social-media search

The plaintiffs asked Pergola to search its social-media accounts using the same search parameters used for other communications. Pergola said it had already reviewed its Instagram account and argued that a broader search would be burdensome because it had received thousands of messages, including automated messages, and Instagram did not provide a search function using the requested terms.

The court granted this motion in part and denied it in part without prejudice to renewal. It ordered Pergola to search its Instagram messages from December 21, 2021, using the same search terms used for other modes of communication. If that search revealed highly relevant information, the plaintiffs could, after meeting and conferring with Pergola, submit a letter motion seeking to expand the search period.

Communications between the plaintiffs

Pergola sought communications between Smith and Niles concerning the lawsuit and the complaint’s allegations. The plaintiffs asserted attorney-client and common-interest privilege. The court explained that the common-interest doctrine does not create an independent privilege; it can preserve attorney-client or work-product protection when the underlying communication otherwise qualifies for protection.

The court held that the communications before the plaintiffs retained counsel on March 15, 2022, were not protected because no attorney was involved and the communications did not seek or reveal legal advice. Those communications had to be produced. After reviewing the later communications, the court held that Exhibits 1, 3, 5, 6, 7, and 8 were protected by the common-interest privilege. Exhibit 2, after redacting portions identical to Exhibit 1, and Exhibit 4 were not protected and had to be produced.

Communications with counsel

The plaintiffs also asserted privilege over communications with their attorneys and the law firm’s support staff after the retainer. Because the communications conveyed or sought legal advice, the court held that they were protected by the attorney-client privilege.

Disposition

Judge Liman concluded that the plaintiffs’ and Pergola’s cross-letter motions to compel discovery were granted in part and denied in part. The Clerk of Court was directed to close Docket Nos. 36, 38, 44, and 45.