Golden Oldie #2 – 40 Hours of Searching is Enough

Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35 (D. Md. 2000), was an employment dispute.  Plaintiff filed a motion to compel discovery responses.  The Court directed defendant to spend 40 hours searching for responsive information.  If the plaintiff wanted more, it could get more; provided that it paid the actual cost of additional defense searches.

At the outset, the Court wrote that it “is given great flexibility to order only that discovery that is  reasonable for a case, and to adjust the timing of discovery and apportion costs and burdens in a way that is fair and reasonable.”

The Court addressed a number of issues, including the need for particularized objections and a sufficient privilege log.

I was most interested by Request for Production No. 1.

Plaintiff sought “all” documents regarding termination of “any” of defendants’ employees in Maryland, Virginia, and the District of Columbia, with no temporal restriction.

First, the Court wrote that the request was facially overbroad.

Second, the Court noted that defendants’ objection was conclusory:

Although the information sought, arguably, is relevant to plaintiff’s claims, the scope of information sought is far too great. Unfortunately, defendant did little in the way of providing facts to assist the Court in tailoring the proper scope.

Third, the Court set a limited date range for discovery and imposed other limitations on scope.

Finally, having limited the request, the Court ordered:

In this regard, defendant will be required to expend up to 40 hours of time to search for these documents. It will submit with its responses an affidavit, signed under penalty of perjury by a person with personal knowledge of the facts in the affidavit, that contains a particularized itemization of the time spent to locate the documents, to enable plaintiff and the Court, if the sufficiency of the search is challenged, to determine whether or not it was diligent, and done in good faith. A failure to properly comply with this requirement will result in the imposition of appropriate sanctions against defendant and/or its counsel.

Having imposed a proportionality limit, the Marens Court also provided an escape clause for the requesting party:

If, following review of the documents produced as a result of the search ordered, plaintiff contends that it is entitled to additional documents within this category, it may file a motion seeking additional documents. If meritorious, the plaintiff will be allowed additional discovery of these documents, provided it pays to defendant the actual cost to defendant for the time needed to locate, assemble and reproduce any such additional documents. [Emphasis added].

In a similar vein, as to a number of other document requests, after a limited production, the Court wrote:  “Following review of these documents, if plaintiff seeks more, he may file a motion requesting it. If meritorious, more discovery will be ordered, subject to the Court’s review to determine whether the plaintiff should be required to pay all or some of the costs related to any additional discovery.”

The judicial author of Marens wrote that “a court can reduce the burden and expense of document discovery by capping the amount of time that the producing party must spend responding, or ordering that the requesting party share all or part of the costs. By imposing numerical or cost limits on discovery, a court can facilitate phased discovery–requiring the parties to focus first on information most likely to affect the outcome of the case and conditioning further discovery on a showing that the results of the initial limited discovery justifies more, given the proportionality factors.”  The Hon. Paul W. Grimm (ret.), “Are We Insane? The Quest for Proportionality in the Discovery Rules of the Federal Rules of Civil Procedure,” 36 Rev. Litig. 117, 171–72 (2017).