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Newman v. Borders

April 6, 2009


The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge


Before me are two motions, one to compel another 30(b)(6) deposition*fn1 and the second to modify Judge Roberts' order limiting the number of depositions that can be taken to eight.*fn2

The facts of the case are simple indeed. On December 2, 2005, a store detective employed by Borders, a defendant, approached the plaintiff and questioned him. Plaintiff claims that the stop was racially motivated and Borders intends to defend itself on the grounds that plaintiff was questioned because the store detective saw him "place an item from the shelf of the store into a bag he brought into the store." Defendant Borders, Inc. and Borders Group Inc.'s Opposition to Plaintiff's Motion to Compel 30(b)(6) Testimony and Documents Relied Upon by 30(b)(6) Designee ("Opp.") [#54] at 1-2.

I. The 30(b)(6) Deposition

Plaintiff served a notice to take a deposition pursuant to Rule 30(b)(6). Motion to Compel, Exhibit 3. Attached to the notice and identified as "Exhibit A" was a detailed list of the nine topics that would be the subject of the deposition. See id. at 5-7. Borders designated Lisa Morrow to testify as to four of the nine topics. The first of those was "Borders' document, information, and record collection and retention policies and practices." Id. at 5. This topic had in turn nine subdivisions that specified the "policies and practices" that would be the subject of the deposition. Id.

During the course of her deposition, Morrow was asked if she knew about Borders's policy regarding the retention or destruction of e-mails. She responded:

The Witness: I don't know what the specific retention policy is. I know the e-mails are backed up in our I.T. department. I don't know how long they're kept for.

Motion to Compel, Exhibit 1, Deposition of Lisa Morrow, at 72. Additionally, she could only speculate whether e-mails between Borders's employees were placed in a file and did not know whether Borders retained copies of e-mails that had been deleted from an individual's inbox, or whether it had a written policy regarding retention of e-mails, although she was sure it did. Id. at 74-75. She also did not know what "e-mails were searched, what search terms were used, whose e-mails were searched," id. at 102, whether "received mail was searched in addition to sent mail or e-mail," id., or whether "e-mails from Borders--from one Border [sic] employee to another Border [sic] employee [were] searched." Id. at 103.

Given Morrows' ignorance, plaintiff wants Borders to designate another 30(b)(6) witness to testify as to Borders's "e-mail retention policies and any searched [sic] conducted of emails."

Motion to Compel at 8.

Borders first complains that plaintiff "mousetrapped" Morrow by identifying the topic generically ("general document and information retention policies") but then asking her detailed questions "regarding specific retention policies, including those related to e-mails." Opp. at 6.

Borders also points out that (1) plaintiff has never sought any documents or policies concerning e-mails "by way of formal discovery requests," id., (which I take to mean by a request for production of documents); (2) there are no allegations whatsoever that any e-mails were improperly deleted, discarded or altered; (3) Borders produced (a) e-mails pertaining to the incident from its employees and (b) a privilege log that listed several e-mails that were retrieved during its search. Id. Plaintiff is said to have "deposed multiple fact and corporate witnesses about emails related to the incident and Borders' search efforts for same." Id. Finally, Borders points to the testimony of another 30(b)(6) designee, Darla Schlacht, who testified about how a complaint from a customer was captured in a particular database system.

Plaintiff justifies its demand not by pointing to any claim of missing or deleted e-mails or because it has some specific reason to believe that e-mails pertaining to the incident were once in existence but have never been produced. Rather, he paints with a much broader brush, insisting that it is important that another 30(b)(6) designee be named to testify as to Borders's retention of e-mails and the searches for them in this case "because Defendants have repeatedly failed to produced [sic] responsive documents until Plaintiff learned of the existence of such documents and specifically requested them or the Court ordered Defendants to produce them." Motion to Compel at 7. In this context, it points to an instance where plaintiff discovered that portions of a handbook pertaining to loss prevention had been redacted from a document given to plaintiff's counsel even though plaintiff's document request sought loss prevention policies and defendants ...

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