Court Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: eDiscovery Case Law

by CloudNine
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In Mann, et al. v. City of Chicago, et al, Nos. 15 CV 9197, 13 CV 4531 (N.D. Ill. Sep. 8, 2017), Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Case Background

In this consolidated case involving alleged unconstitutional Chicago police (CPD) practices at “off the grid” facilities (including one known as “Homan Square”), the parties agreed on several discovery related items, including search terms and the majority of custodians.  The parties also agree that discovery would include the Mayor’s Office, but “reached an impasse” on which custodians in the Mayor’s Office should be searched, with the plaintiffs’ arguing that Mayor Emanuel and ten members of his senior staff were relevant to the plaintiffs’ Monell claim.  In response, the defendant argued that the plaintiffs’ request was burdensome, and that the plaintiffs “have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square”, proposing instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search.

Judge’s Ruling

With regard to the parties’ dispute over whether the Mayor was a “policymaker” for the City with regard to the use of the Homan Square facility, Judge Rowland stated: “On summary judgment or at trial, Plaintiffs will have to provide evidence that ‘the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision’ or that a policymaking official responsible for final government policy on the police practices at issue directed the particular conduct that caused Plaintiffs’ harm…But at this stage Plaintiffs do not have to establish that the Mayor was a policymaker or had final authority on the police practices at issue or that there is a ‘nexus’ between the custodians of the emails and CPD’s alleged activities at Homan Square.”

Judge Rowland also noted that the defendant had identified the two custodians “as the most likely holders of responsive emails…But in light of the allegations in the complaint, the Mayor and his upper level staff also might have responsive emails.”  She also rejected the defendant’s argument that the additional custodians would be burdensome, noting that “[t]he City does not offer any specifics or even a rough estimate about the burden.”

As a result, Judge Rowland ordered the defendant to search emails of five additional custodians (including the Mayor of Chicago), but did not require the defendant to search emails for an additional four custodians requested by the plaintiff “because of the short tenure of the staff person or the time during which the person held the position”.  She also denied the plaintiffs’ request for sanctions against the defendant, stating: “The Court does not view the City’s conduct as sanctionable and both parties’ diligent efforts to work together shows that ‘other circumstances make an award of expenses unjust.’”

So, what do you think?  Might the defendant have had a better result if it had provided at least an estimate of the burden? 

[View source.]

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