The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Now pending before this Court are defendants' Motion for Leave to File a Post-Hearing Brief [#73], Motion for Leave to File Supplement Defendant's Post-Hearing Brief on Spoliation [#78] and Motion for Leave to Designate Expert [#80]. This case was referred to me by Judge John D. Bates for management of the discovery process.
The facts and procedural history of this case are set out in this Court's Memorandum Opinion of Jan. 23, 2008. See D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 44-45 (D.D.C. 2008) (D'Onofrio I).
Pursuant to D'Onofrio I, an evidentiary hearing was held on April 4, 2008 for the purpose of determining "(a) the basis for the Kroll representative's*fn1 conclusion that e-mail and other electronically stored information have not been produced; (b) testimony from plaintiff as to what electronically stored information she believes has not been produced; and (c) the circumstances concerning the scrapping of plaintiff's computer and the consequences thereof in light of any demand made by plaintiff to preserve its contents." D'Onofrio I, 247 F.R.D. at 49. The Court also reserved ruling on the plaintiff's claim for sanctions pending the outcome of the hearing. Id. at 55.
At the hearing plaintiff presented Mr. Douglas Bond, a forensic computer analyst, who plaintiff has retained and designated as an expert in this matter. Transcript of Evidentiary Hearing -- Morning Session 4:17-25 (Apr. 4, 2008) ("AM Tr."). Mr. Bond testified that he may be able to locate electronically stored information on the defendants' servers using forensic techniques. AM Tr. 28:1-13. Bond further explained that his investigation is best done in person. AM Tr. 34:7-15. The defendants agreed to allow an in-person search of the defendants' servers, but the parties are unable to come to an agreement as to the appropriate protocol to guide that search.
Also at the April 4, 2008 hearing, plaintiff testified that there are several types of electronically stored information and documents that she requested and defendants have not produced, including physical files and items from plaintiff's office. AM Tr. 81:11-15. Despite the fact that this case had been pending for over two years when the April 4 hearing was held, defendants' witness testified that he was only asked to create a copy of plaintiff's personal folder for production a few weeks before the hearing. Transcript of Evidentiary Hearing -- Afternoon Session 90:9-21 (Apr. 4, 2008) ("PM Tr.").
Evidence was also presented concerning plaintiff's spoliation allegations. Defendants called Mr. John Cavender, who is a security officer with Clear Channel Communications. Mr. Cavender testified to what searches for electronic electronically stored information he performed in response to plaintiff's requests and explained the Legato*fn2 system. Defendants also called Mr. Eugene Mason, who is Vice President of Finance at SFX Basketball. Mr. Mason testified that he is the "de facto I.T. person" in the office where plaintiff was employed. PM Tr. 72:22-24. Mr. Mason also testified that he "scrapped" plaintiff's computer after he decided that it could not be used and also searched for items requested by the plaintiff. PM Tr. 77:1-12.
II. Defendants' Motions for Leave
After the April 4, 2008 hearing, defendants filed two motions for leave to file a supplemental brief. In support of their position, defendants claim that the briefing will aid the Court in ruling on spoliation and sanctions. Plaintiff argues that the record as to spoliation and sanctions was closed as of the end of the April 4, 2008 hearing and that defendants are looking for a second bite at the apple. The Court agrees with plaintiff that defendants' proposed supplemental brief reargues the same evidence and issues addressed in defendants' opposition to plaintiff's motion to compel, and at the hearing. Because the proposed briefing will not aid the Court in its decision by bringing new information to light, the defendants' motion for leave is denied.
The Court is also cognizant of the fact that a forensic expert has yet to conduct a search of the SFX or Legato servers, which is necessary to determine the extent to which electronically stored information has been lost. The results of that search will very likely warrant supplemental briefing.
Prior to the lunch recess at the April 4, 2008 hearing, the Court asked the parties, with Mr. Bond's and Mr. Cavender's assistance, to confer regarding what protocol would be appropriate to guide a search of the Legato and local servers. After the hearing, defendants sent to plaintiff a proposed protocol consisting of 11 numbered paragraphs. Defendant's Proposed Protocol for Forensic Experts, Exhibit 2 to Motion for Leave to Designate Expert [#80] ("Defs.' Prot."). On June 2, 2008, the plaintiff responded by letter and raised several objections to the proposed protocol. Plaintiff's June 2, 2008 Letter to Defendants, Exhibit 3 to Memorandum in Opposition to Motion for Leave to Designate Expert [#81] ("Pl.'s Object."). Plaintiff did not, however, advance an alternative. Thus, the parties were unable to come to an agreement at that time, and have informed the Court that they have still not come to an agreement.
Defendants have proposed a protocol which, unfortunately, is highly technical. I made it clear at the hearing that I expected the lawyers to rely upon their obviously competent IT professionals and Mr. Bond to arrive at a protocol that would satisfy those professionals who fully understand what they were doing and produce a document that was easy to understand and use. What I got was a proposed defendants' protocol that is highly restrictive and full of undefined "buzz words."
Additionally, in one respect the defendants' protocol is incomprehensible. On the crucial question of what will occur if the search yields previously unproduced e-mails, the defendants' protocol indicates that they will be handled "according to the protocol stated in paragraph 2 herein." Defs.' Prot ¶ 8. But, paragraph 2 says that a Clear Channel employee must be present when the Legato system is accessed and there is no protocol whatsoever in paragraph 2 that makes the reference in paragraph 8 comprehensible.
Since I have gotten so little help from counsel, I will create a protocol of my own using as best I can my understanding of the limited agreement that the parties reached when plaintiff's counsel reacted to defendants' proposal.
Before I specify the terms of the protocol, I must first determine whether the defendants' approach to the new search is correct. As I understand the proposed protocol, the 2007 search for e-mails that the defendants conducted will be replicated; any additional searches are at the discretion of defendants who may decline to conduct them if they will "jeopardize the functioning of the system, or otherwise impact normal business operations." Defs.' Prot. ¶¶ 6-7. If defendants deign to permit the additional search, they retain the discretion not to restore the e-mails. Id. ¶ 10.
This approach is fundamentally misguided. I have heard the testimony in this case and I am firmly convinced that the limited search that the defendants conducted was not likely to produce all of the electronically stored information that plaintiff legitimately demanded.
For example, defendants' witness Mr. Cavender testified that he conducted searches of the Legato system using key strings that correspond to the plaintiff's e-mail address. PM Tr. 32:4-24. The practical effect of this was to limit the results of the defendants' searches to e-mails that were either sent by or to Ms. D'Onofrio. Defendants can not colorably argue, however, that e-mails discussing Ms. D'Onofrio are not relevant to this case, particularly e-mails exchanged between her supervisors about her or pertaining to ...