RONALD NEWMAN , P laintif f,
v. BORDERS, INC. et al.,

Defendan ts. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 07-492 (R WR/JMF )

MEMORAN DUM OP INION Be fore me ar e two motions, one to compel anothe r 30(b) (6) de position and the se cond to 1 modify J udg e Roberts’ or der limiting the numbe r of de positions t hat ca n be take n to eig ht. 2 The fa cts of the c ase a

re simple indee d. On Dec ember 2, 2005, a store de tective employ ed by

Bor ders, a

defe ndant, appr oache d the plaintiff and que stioned him. P laintiff claims that the stop was ra cially

motivated and B order s intends to defend itself on the g rounds that plaintiff was que stioned beca use the store detec tive saw him “plac e an item f rom the shelf of

the store into a baghe brought into the store.” De fenda nt Borde rs, Inc. and B order s Group Inc.’s Opposition to P laintiff’s Motion to Compel 30(b)(6) Te stimony and Doc uments Relied Upon by 30(b)( 6) De signe e (“ Opp.”) [#54] at 1-2.

Motion to C ompel 30(b)( 6) Testimony and Doc uments Relied Upon by 30(b)( 6) 1 Desig nee ( “Motion to Compel”) [#52]
. Plaintiff Ronald Newman’ s Motion to M odify SchedulingOrde r to Incre ase Plaintiff’s 2 Deposition L imit from Seven to Eight. [#49]
.I. The 30(b)(6) De position

Plaintiff served a

notice to take a

deposition pursuant to Rule 30(b)(6) . Motion to Compel, Ex hibit 3. Attached to the notice a nd identified as “ Ex hibit A” was a detailed list of the nine topics that would be the subjec t of the deposition. See id. at 5-7. B order s desig nated L isa Morrow to testify

as to four of

the nine topics. The f

irst of those was “ Bor ders’ document, information, and r ecor d collection and r etention policies and pr actice s.” I d. at 5. This topic had in turn nine subdivisions t hat spec ified the “ policies and pra ctices” that would be the subjec t of the deposition. I d. Duringthe cour se of he r deposition, Morrow w as aske d if she knew about B order s’s policy reg ardingthe re tention or destruc tion of e-mails. She re sponded: The Witness: Idon’t know what the specific rete ntion policy is. I know the e- mails are ba cked up in our I .T. depa rtment. Idon’t know how longthey ’re kept for. Motion to C ompel, Ex hibit 1, Deposition of L isa Morrow, at 72. Additionally , she could only speculate whethe r e- mails betwee n Bor ders’ s employ ees w ere place d in a file a nd did not know whether Bor ders r etained c opies of e- mails that had bee n deleted f rom an individual’s inbox , or whether it had a wr itten policy

reg ardingrete ntion of e-mails, althoug h she wa s sure it did. I d. at 74-75. She also did not know what “ e-ma ils were se arc hed, what searc h terms wer e used, whose
e-ma ils were se arc hed,” id. at 102, whether “re ceive d mail was sea

rche d in addition to sent mail
or e- mail,” id., or whe ther “ e-ma ils from Bor ders–f rom one B order

[si c] employ ee to a

nother Bor der [sic] employ ee [wer e] searc hed.” I d. at 103. Given Morr ows’ ig noranc e, plaintiff wa nts Borde rs to desig nate a nother 30(b) (6) witness to testify as to Bor ders’ s “e- mail retention policies and a ny sear ched [sic] conducted of e mails.”
2Motion to C ompel at 8.

Bor ders f irst complains that plaintiff “mousetra pped” Mor

row by identifying the topic g ener ically

(“g ener al document a

nd information re tention policies”) but then a sking he r deta iled questions “re g ardingspecific rete ntion policies, including those r elated to e -mails.” Opp. at 6. Bor ders a lso points out that (1) plaintiff ha s never soug ht any

documents or policies
conce rninge-ma ils “by

way of for mal discovery

reque sts,” id., (which I

take to mea

n by a re quest for pr oduction of docume nts); (2) ther e ar e no alleg ations whatsoeve r that any e-ma ils were improperly

deleted, disc arde d or alter ed; (3) B order s produce d (a) e-ma ils pertainingto the incident from its employ ees a nd (b) a privileg e logthat listed severa l e-mails that wer e re trieved duringits searc h. I d. Plaintiff is said to have “de posed multiple fact a nd corpor ate witnesse s about emails re lated to the incident a nd Bor ders’ sear ch ef

forts for same.” I d. Finally , Bor ders points to t he testimony

of anothe r 30(b) (6) de signe e, Da rla Schlac ht, who testified about how a complaint from a c ustomer was c apture d in a par ticular database sy stem. Plaintiff justi fies its demand not by pointing to any

claim of missing or

deleted e -mails or beca use it has some spec ific re ason to believe that e-ma ils pertainingto the incident wer e once in exis tence but have ne ver be en produc ed. Rather , he paints with a much br oader brush, insisting that it is i mportant that another 30(b)( 6) desig nee be named to testify as to Bor ders’ s retention of
e-ma ils and the sear ches f or them in this case “ beca use De fenda

nts have re peate dly

failed to produce d [si c] responsive docume nts until Plaintiff learne d of the e x istence of such docume nts and spec ifically

reque sted them or the Court orde red D efe ndants to produce them.” Motion to Compel at 7. In this contex t, it point s to an instance where plaintiff discover ed that portions of a handbook per

taining to loss pre vention had bee n reda cted f rom a doc ument g iven to plaintiff’s
3counsel e ven thoug h plaintiff’s docume nt reque st sought loss preve ntion policies and defe ndants

repr esente d that only

the unre sponsive portions of the handbook w ere reda cted. I d. Plaintiff also claims that Iorder ed the de fenda nts to produce doc uments and that at one point defenda nts had repr esente d that these doc uments did not ex ist. I d. II. E-m ail pol icy That a pa rty ’s document r etention policies, includingits poli cies a s to electronic ally stored information, may

be a f it subject of discover

y cannot be g ainsaid. Huthnanc e v. District of Columbi a, 255 F .R.D. 285, 287 (D.D.C. 2008) ( quoting Doe v. District of Columbia, 230 F.R.D. 47, 56 (D.D.C. 2005)) . I t is equally clea r that a pa rty must produce a s its 30(b)(6) de signe e a person who c an spea

k knowing ly

as to the topic and, if ne cessa ry , educate that desig nee so tha t she ca n do so. I nterve t, Inc. v. Mer ial L td., No. 06-CV-658, ___ F .R.D. ___, 2009 WL540392, at *4 n.1 (D.D.C. Mar . 4, 2009). There is, however , a conc omitant responsibilit y upon the par

ty who had notice d the 30(b)( 6) deposition to define a s clea rly as possible the topics for the deposition. W hile topic one speaks of “[g]ener al document a

nd information re tention policies” and topic nine of “[d] efe ndants’ sea

rch f or re cords or

documents or infor

mation responsive to Plaintiff’s Request for Produc tion of Documents” the words “e -mail” or “ elec tronically stored information” do not appea r in the desc ription of the topics, which a re r emar kably inclusive and de tailed. I cannot sa y that a re asonable lawy er r eadingthat document would conc lude that B order s’s e-ma il retention policy and the se arc h for e -mails perta ining to this case wer e g oing to be topics of the deposition. Instead, in a w orld wher e the va st majority (to put it mi ldly

) of a ll communications within businesses is elec tronic, I am har d presse d to understand why , if plaintiff thinks it so obvi ous that

4information about def endants’ e -mail policy

and the se arc h for e -mails wer e ca lled for by the topic descr iption, plainti ff did not simply say so. Whi le I

appre ciate that plaintiff’s claim that defe ndants initially

failed to produc e a por

tion of a docume nt that should have bee n produce d is unrebutted, I

have pr esided ove r the discove ry in this case and ha

ve found a

bsolutely no indication that the def

endants have eng ag ed in any behavior that would sug g est that defe ndants have know ingly

destroy ed any

pertinent e -mails or fa iled to searc h conscie ntiously for pe rtinent
e-ma ils. Neve rtheless, a s Ihave e x plained, discove ry about a pa

rty ’s document r etention policy is
cer tainly leg itimate. Ialso have the unquestioned right (if not the duty ) to bringdiscovery disputes to a just and inex pensive c onclusion. Fe d. R. Civ. P . 1. Iam stunned by how much time and ef fort has be en spent on discove ry in a ca se that involves a c onfrontation betwe en plaintiff and a store detec tive that could not have taken much time. I am also we ll past being convince d that the potential leg al fe es in this case, tha nks to the many

discovery

disputes, will dwarf the potential rec overy , if there is one. The time has c ome (it may have c ome and g one) f

or me to bringthis particular c ontroversy about e- mail to a quick and mer ciful end w ithout another costly deposition. Cf. Fed. R. Civ. 26(c) (1)( c) ( upon application for protec tive order

court may “pre scrib[e] a discovery

method other than the one sele cted by the par ty seeking discovery .”). Iunderstand f

rom their pape rs that the par ties attempted to resolve the controve rsy by trying to a g ree to an af

fidavit from B order s that spoke to the issues that arose duringMorrow’ s deposition. They

did not try

hard e noug h. Acc ording ly , in lieu of a 30(b) (6) de position Border s

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Counsel should become a war e of the perc eptible trend in the c ase la w that insists t hat 3 counsel g enuinely

attempt to resolve discove ry disputes. See Covad Commc’ns Co. v. Revonet, Inc., 254 F .R.D. 147, 149 (D.D.C. 2008); see also Sedona Confe renc e Cooperation Proclamation 5will submi t an af fidavit from a

Bor ders r epre sentative who is truly knowledg eable that will speak to the following questions: 1. What kind of e-mail sy stem does B order s have? (I .e Outlook, L otus Notes or proprieta ry )? 2. I s that sy stem prog rammed to de lete e- mails automatically that have be en in exis tence for a

cer tain period of time? I f the a nswer is yes, what is the period of time and was that sy stem shut off or ke pt on after the incident involving pla intiff? 3. Does B order s have a policy that require s either the r etention or de letion of e-ma ils and, if so, what is the policy and is it in writing? I f it is in writing, it will be appende d to the aff

idavit. 4. Was it necessar

y to make ef

forts to preve nt the deletion of e -mails afte r the incident involving plaintiff, a nd, if so, what ef

forts we re ma de? 5. I s Bor ders a

war e of the deletion of a

ny e-ma ils pertainingto the incident involving plaintiff? 6. Who was responsible for sear chingfor a

ny e-ma ils pertainingto the incident involving plaintiff

? 7. How did this person or these persons c onduct the sea rch? What rece ptacles of elec tronically

stored informa

tion were sear ched? Network serve rs, individual hard dr ives? 8. I f individual hard dr ives wer e sea rche d, whose we re the y ?
(2008), a vailable at http:/ /www.these donaconf ere nce.or g /dltForm? did=Cooperation_ Proclamation.pdf. 69. Did the sea rch involve the use of ke y words and, if

so, what we re the y ? III. Another deposition Plaintiff seeks to take a

nother de position, beyond the seve n J udg e Roberts pe rmitted but I am in no position t o undo what Judge Rober ts has done. That motion wil l have to be de nied.
Conclusion Bor ders must submit the affidavit I have just desc ribed but plaintiff may not take anothe r 30(b)( 6) deposition or any more de positions whatsoever. An Orde r ac companies this Memora ndum Opinion.
Date: Apr il 6, 2009 /S/ J OHN M. F ACCI OLA U.S. MAGI STRATE J UDGE

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