IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02560-MSK-MEH

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

and

WENDY J. CABRERA,

Plaintiff-Intervenor,

v.

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC.,

Defendant.

______________________________________________________________________________

ORDER RE: EEOC’S MOTION FOR RESOLUTION OF DISCOVERY DISPUTE 

______________________________________________________________________________

Michael E. Hegarty, United States Magistrate Judge.

Plaintiff EEOC has filed a Motion for Resolution of Discovery Dispute and Proposed

Protocol and Search Term List [docket #276]. The motion is referred to this Court for disposition.

(Docket #277.) The matters are fully briefed and the Court heard oral arguments on February 12,

2013, at which the Court determined to grant in part and deny in part the EEOC’s motion. This

Order sets forth in writing the Court’s decision.

I. Background

Plaintiff Equal Employment Opportunity Commission (EEOC) brings claims of

discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, alleging

Defendant subjected a class of female employees to sexual harassment, and retaliated against such

employees when they complained about the harassment. Docket #6 at 1. On November 20, 2011,

Case 1:11-cv-02560-MSK-MEH Document 334 Filed 02/27/13 USDC Colorado Page 1 of 9
1

 Since that time, the District Court ruled on Defendant’s Motion to Dismiss [docket #42] and,

thus, searches relating to Long Armstrong and any aggrieved individuals who alleged sexual

harassment only against him have been eliminated by agreement of the parties. 

this Court granted Wendy Cabrera leave to intervene in this action. Docket #9. Defendant

responded to both the Amended Complaint and the Intervenor Complaint by filing Answers on

January 6, 2012. Discovery commenced with the Scheduling Order issued December 20, 2011 and

concluded on November 31, 2012. 

In the present Motion for Resolution of Discovery Dispute, the EEOC and Defendant could

not agree on a protocol or search terms for the search of electronically stored information including

social networking data, text messages, blog postings, and email accounts as ordered by the Court

on November 7, 2012. [Docket #241.] The EEOC recommended use of 57 search terms,1

 while

Defendant recommended approximately 475 terms. Based on the lowest bid it obtained, the EEOC

also requested that the Court appoint Jeremy Shaper of BlueStar Case Solutions, Inc. as the Special

Master in this case.

II. Analysis 

At the oral argument on February 12, 2013, I entertained the parties’ respective positions

on each of the search terms proposed by Defendant (having accepted all of the EEOC’s lessinclusive search terms, all of which had been stipulated by the Defendant). I am now prepared to

enter an order reflecting my rulings on appropriate search terms and related issues.

I adopt the EEOC’s proposed search terms and protocol (with certain additions proposed

by Defendant) and amend my Order from November 7, 2012 as follows: First, the EEOC will bear

the initial costs of the Special Master and discovery of the aggrieved individuals’ ESI, and will seek

reimbursement through this Court from the Defendant. At the appropriate time, I will entertain a

motion and argument on the proper apportionment of such costs between the parties in the case.

Case 1:11-cv-02560-MSK-MEH Document 334 Filed 02/27/13 USDC Colorado Page 2 of 9
Although I initially ordered that such costs be shared equally, I am prepared to consider a different

apportionment. Second, appended to this Order is my decision concerning what additional search

terms will be included.

The Special Master is to bates stamp all of the results of his search. The EEOC will then

have the opportunity to conduct a privilege review prior to the Court’s in camera inspection of the

records. The Special Master shall provide the EEOC with the results of its search, and the EEOC

shall create a privilege log to provide to the Court and Defendant describing any records that it

withholds due to privilege prior to the Court’s relevance review. These are the only records the

EEOC may withhold. At this time, the EEOC shall also provide the Court with a list of any of its

other objections to the discovery.

Dated and entered at Denver, Colorado, this 27th day of February, 2013.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge 

Case 1:11-cv-02560-MSK-MEH Document 334 Filed 02/27/13 USDC Colorado Page 3 of 9
APPENDIX

SEARCH TERMS AND PROTOCOL FOR THE SPECIAL MASTER CIVIL

ACTION NO.: 11-CV-02560-MSK-MEH

A. Relevant Time Period: For all of the following sections (B through F), the period of search

for electronic information will be limited to January 1, 2009 through the present. 

B. Social Networking Media

I. The Special Master shall download and preserve all content from any social networking

website owned by an aggrieved individual, including wall posts, pictures, and videos, with

the exception of direct messaging, and produce this content to the Court for an in camera

review for relevance.

II. All direct messaging or similar private one-on-one electronic communications sent through

any social networking media shall be treated the same as any other email from a private

account, and shall be subject to the search terms and restrictions provided in sub-section C.

III. “Tagged” photos and similar such ventures are not subject to discovery.

C. Private Email Accounts

I. The aggrieved individual is required to disclose to the Special Master her own personal

email accounts, usernames, and passwords. She is not required to disclose any email

accounts provided to her by any employer.

II. The Special Master shall download and preserve all email communications between the

following recipients and produce them to the Court for an in camera review for relevance:

1. All electronic communications exchanged between and among the 13 remaining

aggrieved individuals.

2. All electronic communications exchanged between the aggrieved individual and James

(“Jimmy”) Jackman.

3. All electronic communications exchanged between the aggrieved individual and Donna

Wagner-Rago.

4. All electronic communications exchanged between the aggrieved individual and Tim

Franklin.

5. All electronic communications exchanged between the aggrieved individual with an

HBH corporate email account (i.e., @hbham.com).

6. All electronic communications exchanged between the aggrieved individual with Michal

(“Mike”) Costello.

7. All electronic communications exchanged between the aggrieved individual and Ami

Huff.

8. All electronic communications exchanged between the aggrieved individual with Molly

Kesmodel.

9. All electronic communications exchanged between the aggrieved individual with Cindy

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Sutton.

 III. All email communications with individuals other than those listed in Paragraph C.II., will

be searched as provided by Part F of this Protocol.

D. Web Blogs and Other Forums for engaging in communications 

I. If an aggrieved individual owns and hosts her own web-blog, she shall disclose the username

and password to the Special Master. The Special Master shall download and preserve all

public content, including posts, pictures, and videos, and produce this content to the Court

for an in camera review for relevance.

II. Additionally, the aggrieved individual shall identify to the Special Master any web blog or

public internet forum where the aggrieved individual posted during the relevant time period,

to exclude banking, commercial or shopping, political, and internet date or dating forums.

E. Cell Phones:

I. The aggrieved individual is required to provide to the Special Master with all cell phones

in her custody or control, which she personally owned or had in her possession during the

relevant time period specified in Part A, with the exception of phones provided to her by

her employer.

II. The Special Master shall download and preserve all email communications between the

following recipients and produce them to the Court for an in camera review for relevance:

1. All electronic communications exchanged between and among the 13 remaining

aggrieved individuals.

2. All electronic communications exchanged between the aggrieved individual and James

(“Jimmy”) Jackman.

3. All electronic communications exchanged between the aggrieved individual and Donna

Wagner-Rago.

4. All electronic communications exchanged between the aggrieved individual and Tim

Franklin.

5. All electronic communications exchanged between the aggrieved individual with an

HBH corporate email account (i.e., @hbham.com).

6. All electronic communications exchanged between the aggrieved individual with Michal

(“Mike”) Costello.

7. All electronic communications exchanged between the aggrieved individual and Ami

Huff.

8. All electronic communications exchanged between the aggrieved individual with Molly

Kesmodel.

9. All electronic communications exchanged between the aggrieved individual with Cindy

Sutton.

 III. All email communications with individuals other than those listed in Paragraph E.II., will

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be searched as provided by Part F of this Protocol.

F. Search Terms:

 I. The search term list below applies only to those electronic communications that are not

otherwise addressed above. Specifically, electronic communications between the aggrieved

individuals and key actors as identified in Paragraphs C.II and E.II are subject to full

disclosure to the Court for in camera review, as is public social networking media captured

under Part B.I, blogs and similar forums owned and controlled by an aggrieved individual

as captured under Part D.I, and relevant blog public content captured under Part D.II.

 II. All electronic communications captured under Parts C or E, between an aggrieved individual

and individuals other than those identified in Paragraphs C.II and E.II, will be searched for

the following terms. Any communication containing one or more of the following terms in

the subject line or text of the message will be provided to the court for an in camera review

for relevance unless designated as privileged:

1. Jimmy

2. James

3. Jackman

4. Donna

5. Wagner

6. Wagner-Rago

7. Rago

8. HoneyBaked

9. HBH

10. ham

11. sexual harassment

12. sexually harassed

13. (money OR $) AND lawsuit

14. lawsuit

15. sex* AND (Jimmy OR Jackman)

16. touch* AND (Jimmy OR Jackman)

17. rub* AND (Jimmy OR Jackman)

18. sex* AND (HBH OR HoneyBaked)

19. harass* AND (HBH OR HoneyBaked)

20. harass* AND (Jimmy OR Jackman)

21. harass* AND (Donna OR Wagner-Rago)

22. wet-willie

23. fired

24. retaliat*

25. Costello

26. (Mike OR Michael) AND (H.R. OR corporate*)

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27. H.R.

28. Human Resources

29. Franklin

30. Huff

31. Suhail-Lewis

32. Cabrera (to exclude Ms. Cabrera’s own electronic communications)

33. Gunther (to exclude Ms. Gunther’s own electronic communications)

34. Gountanis (to exclude Ms. Gountanis’ own electronic communications)

35. Thomas (to exclude Ms. Thomas’ own electronic communications)

36. Haider (to exclude Ms. Haider’s own electronic communications)

37. Ramirez (to exclude Ms. Ramirez’s own electronic communications)

38. Fye (to exclude Ms. Haider’s own electronic communications)

39. Sakalyte (to exclude Ms. Sakalyte’s own electronic communications)

40. Shoemaker (to exclude Ms. Shoemaker’s own electronic communications)

41. Sbravati (to exclude Ms. Sbravati’s own electronic communications)

42. Mondragon (to exclude Ms. S. Mondragon’s own electronic communications)

43. Witchard (to exclude Ms. Witchard’s own electronic communications)

44. Jones (to exclude Ms. Jones’ own communications)

45. interview

46. application

47. applied

48. quit

In addition, the Court will include from Defendant’s proposed search terms the following

additional words:

49. $ W/5 (case* OR settl* OR pay OR paid OR money)

50. accus* W/2 they

51. affect*

52. agreement W/1 settl* 

53. annoy*

54. anxiety

55. attorney*

56. boob*

57. boss*

58. breast

59. cash W/5 (make OR settle OR get OR paid OR pay) 

60. chest

61. claim*

62. class W/1 action

63. complain*

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64. convic*

65. court*

66. crisis

67. cunt

68. cuss*

69. customer

70. damages

71. demot*

72. depress*

73. discharge

74. disciplin*

75. discrim*

76. distress* W/1 emotion

77. employ*

78. erection

79. evidence

80. fun*

81. gorgeous

82. grabbed

83. harass*

84. hard W/10 butt!

85. hard W/1 on

86. host* W/3 environ*

87. honey-baked OR honey baked

88. humiliat*

89. inapprop*

90. injur*

91. interview*

92. JJ

93. job*

94. justice

95. legal

96. manager

97. occupation*

98. on video

99. penis

100. policy

101. promot*

102. recover*

103. he rub* 

104. settle* 

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105. sexual

106. shock*

107. termin*

108. threesome

109. transfer* (to apply only to Ms. Jones’s communications)

110. unemployed (to apply only to the electronic communications of Mses. Cabrera,

Gunther, Sakalyte, Shoemaker, and Sbravati)

111. victim

112. write up OR wrote up OR written up

113. written OR final warning

114. wet W/10 (willie OR willy)

115. wet W/3 gave

116. witness*

117. won W/5 case

118. womanizer

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