Litigants’ Effort to Effectively “Rewrite”  Court Order Led to Appointment of Third-Party Vendor

In EEOC v. Mia Aesthetics Clinic, ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. Aug. 18, 2025)(“Mia Aesthetics II”), Mia Aesthetics, in my words, tried to “rewrite” a court order.  That unsuccessful effort led to appointment of a third-party ESI vendor at defendants’ cost.

In a prior decision, the court had ordered defendants to describe “in detail” how they had searched for responsive ESI. Instead, they explained what was not available.  According to the court, that was, “at best,” a “misunderstanding” of the order.

In short, because they failed to comply with the court order, “Defendants must revisit their document production with the assistance of a third-party ESI vendor of Defendants’ counsel’s choosing. Defendants must make a reasonable attempt to recover or restore any relevant and responsive materials. Defendants also must produce any newly uncovered materials in a useable form.”  Further: “Defendants are WARNED that any failure to comply with this Order may result in the imposition of sanctions.” [Emphasis in original].

The history of Mia Aesthetics was explained in “Diligent Search,” But No Responsive Data, is Insufficient Response (Jun. 10, 2025).  There, in Mia Aesthetics I, the plaintiff, EEOC, prevailed on several discovery disputes. It did so because the EEOC’s attorneys did their homework and supported their litigation position with facts.

In Mia Aesthetics I, on May 30, 2025, the court wrote that: “[I]f Defendants would like to avoid the cost of hiring a third-party vendor, they must prove that they can and have properly complied with their discovery obligations on their own.”  In Mia Aesthetics II, the court summarized and then implemented its prior decision:

The Court’s May 30 Order … imposed essentially two obligations upon Defendants: (1) to conduct a “thorough search of their files for any responsive data”; and (2) to “provide Plaintiff a document (or documents) outlining, in detail, how Defendants searched for the files.” Doc. 42 at 14 (emphasis in original). This applied to four categories of materials still in dispute: (1) Salesforce data; (2) Webb’s emails; (3) Google Voice data; and (4) Slack communications

Mia Aesthetics II picks up after the EEOC deposed two corporate designees (Fed.R.Civ.P. 30(b)(6)) on June 2, 2025.   Eleven days later, on June 13^th, the Mia Aesthetics defendants filed their response to the court’s Mia Aesthetics I order. On June 18^th, the EEOC noted alleged deficiencies in that response and requested “cure.” Receiving none, the EEOC renewed its request for appointment of a third-party vendor.

The plaintiff EEOC alleged that Mia Aesthetics failed to comply with both prongs of the May 30^th order. The court wrote that, in response:

Defendants argue that they complied with the Court’s Order. In particular, they contend that they: (1) conducted follow-up searches and internal inquiries; (2) produced “all available responsive documents located to date”; and (3) provided a “supplemental written explanation” while designating corporate representatives who testified at length about “the search efforts.”

The court examined both the depositions and the written explanation, finding neither to be sufficient.

Mia Aesthetics asserted that, at the same time as the court order, its corporate designees were being deposed. It essentially contended in part that the depositions met its requirements under the order. In the court’s words:

As a result, according to Mia, “Plaintiff already had the opportunity to, and did inquire about the details of the matters outlined in the Court’s Order.” … Mia in turn adopted and incorporated “the testimony of the corporate representative on these matters as their response to the request for Webb’s Salesforce data, Webb’s emails, and Webb’s Google Voice data and Slack communications.”

Additionally, Mia Aesthetics asked Salesforce if certain data could be restored post-license termination and was told that it could not be recovered. It pointed to termination of Gmail accounts and migration to Microsoft Office to explain missing email and: “Mia further provides that it ‘conducted a thorough search’ of various emails belonging to custodians identified by Plaintiff…. It states that it performed these searches ‘with a combination of identifiers.’”  It contended that Google Voice and Slack data could not be recovered.

The Mia Aesthetics II court wrote:

Defendants have failed to comply with the Court’s May 30 Order. That Order required Defendants to provide in detail explanations of how they conducted a post-Order search for the outstanding categories of data….  Defendants’ “supplemental response” pursuant to the Court’s Order fails to provide any such detail.

First, it addressed Mia Aesthetics’ reliance on the Rule 30(b)(6) depositions:

Put plainly, Defendants cannot attempt to substitute 30(b)(6) deposition testimony taken three days after the Court’s Order for specific compliance with that Order which, again, required Defendants to provide a document to the EEOC outlining in detail how Defendants made their new search for outstanding files.

The court wrote that explanations of why ESI was unavailable “fell far short of the necessary detail.”  It explained:

This indicates at best a misunderstanding of the Court’s May 30 Order. That Order did not instruct Defendants to explain why particular data was not available. Instead, the Order instructed Defendants to provide a detailed document outlining “how Defendants searched for the files.” … (emphasis added). This is an important distinction. As the Court explained in its Order, requiring Defendants to provide this document to the EEOC would allow the EEOC—and the Court, if necessary—to evaluate whether Defendants are capable of conducting the search and retrieval efforts on their own.

In part because (1) Mia Aesthetics had “not provided any evidence demonstrating that they have made a reasonable effort to locate and obtain the materials sought by the EEOC”; in part because (2) Mia Aesthetics’ “brief primarily explains how or why certain information is not available”; and in part because, (3) in the court’s words, Mia Aesthetics’ belief that the EEOC had the burden of proving that discovery should be permitted was a misunderstanding of the law, the court found that “Defendants have not complied with the Court’s May 30 Order.”

Failure to comply with the order led to the following: “Based on the foregoing discussion regarding the inadequacy of Defendants’ supplemental response…, the Court agrees with the EEOC and will require Defendants to hire a third-party ediscovery vendor here.”

The factual predicate was that “the Court here lacks confidence in Defendants’ ability to respond fully to the EEOC’s requests.”  Mia Aesthetics’ conclusory assertion that it had searched “email databases” was, for example, unable to carry the day.

The specific new order was that:

First, Defendants must hire an appropriate third-party vendor of defendants’ counsel’s choosing. Second, Defendants must make a reasonable attempt, assisted by the vendor they hire, to recover or restore any relevant and responsive materials. All ESI produced must be produced in a useable form. And finally, Defendants’ counsel, in this case [name of counsel omitted here], must personally oversee the process of identifying, recovering, collecting, processing, and producing all of the ESI sought. [Emphasis added].

The EEOC appears to have done everything right.  To give only one example, when Mia Aesthetics provided a response that the EEOC felt was deficient, instead of prematurely going back to court, it contacted Mia Aesthetics and requested “cure.”