Medrano v. Flowers Food, Inc. et al

MOTION to Compel Identification of Bates Ranges for Specific Discovery Requests

D.N.M.February 26, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO PAUL MEDRANO, on his own behalf and ) on behalf of all others similarly situated, ) ) Plaintiff, ) ) NO.1:16-CV-00350-JCH-KK v. ) ) FLOWERS FOODS, INC., and ) FLOWERS BAKING CO. OF ) EL PASO, LLC ) ) Defendants. ) ) PLAINTIFF’S MOTION TO COMPEL IDENTIFICATION OF BATES RANGES FOR SPECIFIC DISCOVERY REQUESTS COMES NOW Plaintiff, Paul Medrano, by and through his attorneys, JONES, SNEAD, WERTHEIM & CLIFFORD, P.A., and respectfully asks this Court to enter an Order compelling Defendants to comply with Federal Rule of Civil Procedure 34(b)(2)(E)(i), regarding form of production of documents. Plaintiffs’ repeated requests for identification of which Bates ranges within Defendants’ production correspond to which of Plaintiffs’ discovery requests have not been met with any information; instead, Defendants have simply asserted that the information is forthcoming. Because Defendants have consistently and continually relied on similar representations as a delay tactic, a motion to compel is appropriate and necessary. Plaintiffs have been engaged in extensive communications with defendants regarding production of requested documents. Although Plaintiffs’ initial discovery requests (Requests for Production and Interrogatories to both Flowers Foods, Inc., and Flowers Baking Co. of El Paso, Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 1 of 7 2 LLC) were filed on April 6, 2017, the bulk of Defendants’ documents were not provided until late January of 2018. And, when those documents were produced, they were simply Bates numbered without any indication of which documents were responsive to which requests, or even which documents came from Flowers Foods and which documents came from Flowers Baking Company of El Paso. Because this production consisted of nearly forty thousand pages of email communications, spreadsheets, and other documents, it is unreasonable for Plaintiffs to attempt to determine whether Defendants have complied with their discovery obligations without identification of which Bates ranges are responsive to which discovery requests. Plaintiffs have raised this concern with Defendants several times and have consistently been told that Defendants “are working on it.” Because of the extraordinary delay in Defendants’ production of the documents in the first place—nearly ten months from submission of the discovery requests to actual production of documents—and because of repeated delays in the discovery schedule of this matter already caused by Defendants’ delay tactics, Plaintiffs now seek an Order compelling Defendants to comply with their discovery obligations promptly. As the Court is aware, Fed. Rule Civ. P. 34(b)(2)(E)(i) requires that a party responding to a discovery request produce the documents “…as they are kept in the usual course of business” or “…must organize and label them to correspond to the categories in the request.” Since Flowers has refused to produce documents as they are kept in the usual course of business— asserting that the burden of searching electronic records precludes them from doing so—it has instead relied on what it calls a “sampling” approach through which it selects search terms to be Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 2 of 7 3 used on some portion of its electronic record archive. 1 Apparently, this “sampling” approach resulted in production of around forty thousand pages of documents, which have been produced. However, with such production, Defendants have offered not a whit of identification, labeling, or apparent organization. Thus, Plaintiffs’ efforts to determine whether Defendants’ have actually fully complied with their discovery obligations are stymied. Based on dozens upon dozens of “overly burdensome” and relevance objections, and on its unilateral determination that this particular case is small and therefore deserving of less effort in the discovery arena than are their many other cases nationwide, Defendants have asserted that with regard to email and records from handheld computers used by Plaintiffs a “sampling” approach is appropriate: “As you know, this is a case involving a single subsidiary and a small number of opt-ins…we believe a representative sampling is more than appropriate and a proportional option.” October 26, 2017 Email from Margaret Hanrahan to S. Wolf. In that same email, Ms. Hanrahan also indicated that her co-counsel “…will be following up with you regarding proposed search terms and custodians.” Notably, this communication was sent more than six months after Plaintiffs’ discovery requests were submitted, and after several good faith letters had been sent. On January 29, Plaintiffs’ counsel thanked Defendants’ counsel for recent discovery production, and stated: “I don’t believe we received any indication of which bates number ranges are responsive to which discovery requests. Please provide that information, or tell me where among the discovery provided we may find it.” January 29, 2018 Email from S. Wolf to K. Paulus and M. Hanrahan. When no response was received, counsel wrote again on February 7, 1 The opacity of Defendants’ information management systems, and Plaintiffs’ efforts to obtain information regarding those systems in order to understand whether Defendants’ approach is reasonable, have been a subject of ongoing discussion and will likely result in another motion to compel. Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 3 of 7 4 2018, stating: “I’m following up on my request on January 29, 2018 that you provide information showing which bates ranges in your recent discovery production correspond to which discovery requests. I don’t believe we’ve received that information.” Again, on February 9, 2018, counsel wrote: “I’m following up on our requests of January 29, 2018 and February 7, 2018 that you provide information showing which bates ranges of your clients’ production correspond to which of our discovery requests. I have yet to have a response to this request.” Finally, Defendants responded, stating “We are working on that request and will have something to you next week.” That next week—the week of February 12—nothing was received; nor was any information provided the following week of February 19 th . Under ordinary circumstances, it is certainly appropriate for parties to patiently work through issues and “stay in touch” regarding efforts to supplement specific discovery responses or provide other relevant information. In a circumstance like this one, where “we’re working on it” has been shown to be a delay tactic rather than a genuine representation of fact, a motion to compel is appropriate at this stage. Defendants have already so thoroughly abused the “we’re working on it” response that it appears to be meaningless: Plaintiffs have waited literally month after month after month while Defendants took their time producing documents. Defense counsel attempted to justify their extraordinary delay complaining about the burden of review and the volume of their production: The total volume of ESI under our agreed search terms and from our agreed custodians is 24,651 emails with search hits, and 43,589 documents including attachments. That volume requires us to expend significant resources to review and process documents for production, and we are working on completing our process as quickly as we can. We have recently engaged additional resources to assist in the review of these documents in order to expedite our process. To date, we have already produced 52,725 pages of documents in this matter, and we will Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 4 of 7 5 be producing additional responsive documents for the opt-in plaintiffs within the next week. Email from K. Paulus, December 19, 2017. Of course, the “additional responsive documents” were not provided within the next week, but nearly a month later. This justification carried an ironic error: although Defense counsel claimed to have produced 52,725 pages of documents, at that point the Defendants had in fact produced only 2,601 pages—and Plaintiffs had produced over fifty thousand pages of documents. Where Defendants’ law firm identifies approximately 900 lawyers on its web page (to Plaintiffs’ six) the endless delay based on the burden rings hollow. It is this continued delay, coupled with repeated broken promises and failures to follow through, that makes the present Motion to Compel necessary. Plaintiffs’ preference would certainly be to assume that when Defendants say something will be provided next week, it will be provided next week. However, this collegial approach has so far bred nothing but delay. Plaintiffs therefore respectfully request that this Court enter an Order compelling Defendants to produce the requested Bates-range information and to approach its current and future discovery obligations expeditiously and without further unnecessary delay. Conclusion Throughout this litigation, Defendants have continually dragged their feet with regard to their discovery obligations, leaving a trail of unmet deadlines and broken promises. This delay has prejudiced Plaintiffs’ ability to prepare their case and has resulted in delays to the scheduling order in this matter. Now, Plaintiffs have simply requested that Defendants comply with their obligation to “organize and label” discovery responses to correspond to Plaintiffs’ requests. Although the information at issue was produced nearly ten months after the discovery requests Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 5 of 7 6 were filed, a month later Defendants have still not provided the labeling information requested. Such continual failures and delays are improper and should not be permitted. Respectfully Submitted, JONES, SNEAD, WERTHEIM & CLIFFORD, P.A. By: /s/ Samuel C. Wolf JERRY TODD WERTHEIM SAMUEL C. WOLF JENNY F. KAUFMAN 1800 Old Pecos Trail Post Office Box 2228 Santa Fe, New Mexico 87504 Tel. (505) 982-0011 Fax. (505) 989-6288 Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 6 of 7 7 CERTIFICATE OF SERVICE I hereby certify that on February 26, 2018, I filed the foregoing document electronically through the CM/ECF system, which will send notification of such filing to all counsel of record to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. /s/ Samuel C. Wolf Samuel C. Wolf Case 1:16-cv-00350-JCH-KK Document 78 Filed 02/26/18 Page 7 of 7