Court Orders Specific Discovery After Complete ‘Breakdown’ Between Parties

by Zapproved LLC

In Bird v. Wells Fargo, the Court Orders Specific Discovery After Process Breaks Down

Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cal. Mar. 31, 2017).

In this case, the discovery process broke down so completely that the court ordered specific discovery. It also prohibited the parties from conferring further about the scope of production.

This employment discrimination case began when the plaintiff, Kimberly Sue Bird, sued her former employer, Wells Fargo Bank. Bird alleged that Wells Fargo terminated her based on her age and gender, breaching her employment contract. Wells Fargo countered that it had fired her for failing to comply with its security policy.

The court observed that, despite numerous discovery conferences, it “is as if this case has not yet had its rule 26(f) conference.” The parties have apparently not reached a meaningful agreement “long after such matters should have been resolved.”

For example, Bird indicated that she wanted to complete nine depositions. However, mere weeks before the close of discovery, she had “not yet noticed any deposition.” For its part, Wells Fargo declined “to provide any information regarding the person who replaced” Bird. The bank also refused to provide any documents until Bird submitted a complete list of search terms and custodians. Wells Fargo threatened that if Bird did not provide that list by a specific time, it would void their agreement.

At the start of discovery, both parties had “agreed to preserve any relevant electronically stored information.” Only after the initial discovery deadline had passed and the court had ordered a joint discovery statement did Wells Fargo admit that it had “purged [Bird’s] email box following her termination.” Wells Fargo first disclosed this fact to Bird “the day before the joint statement was due” to the court. Wells Fargo did not indicate whether it could restore Bird’s emails. However, the bank claimed it would take six to eight weeks to collect and review the other requested information.

Despite its failures, Wells Fargo declared it would not “search for further responsive documents” until the parties agreed on the scope of discovery. Wells Fargo also threatened that it “reserve[d] the right to … shift all fees and costs” for discovery to Bird.

The court first noted that the “purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Thus, “the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons.”

Here, the court concluded that “discovery … has completely broken down.” It accorded the blame to both parties. The court agreed that Bird had “taken extreme positions regarding the scope of discovery” but described the bank’s approach as troubling.

Specifically, the court found that Wells Fargo had “taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms.” Additionally, Wells Fargo’s threats to have Bird pay its costs lacked “any legal justification.” The court concluded that Wells Fargo’s “dialogue is not professional and not a good faith attempt to meet and confer.”

Both parties had ignored the court’s previous “guidance on the scope of discovery.” Moreover, neither suggested “any constructive way forward.” Therefore, the court ordered both parties to not further engage, meet or confer. Instead, the court devised its own discovery plan. The court ordered Wells Fargo to provide, among other documents, Bird’s entire personnel file, all documents concerning her termination and any disciplinary actions and information about her replacement as well as every other employee who had violated Wells Fargo’s security policy. The court specified when Bird could file for sanctions if Wells Fargo failed to provide that discovery or was “unable to restore or replace” her emails.

Takeaways to ensure better e-discovery outcomes

Here, the court clearly took offense to Wells Fargo’s unprofessional tone and unfounded threats. The lesson to learn is simple but not always easy to follow: conduct discovery in good faith.

Don’t wait for the other side to be reasonable to comply with your own discovery obligations. Make relevant materials available promptly and continue to supply information as you obtain it. If you learn that information has been lost or destroyed, immediately advise your opponent and the court and outline your restoration plans. Finally, maintain a civil tone in communications.

[View source.]

Written by:

Zapproved LLC

Zapproved LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.