EEOC v. M1 5100 Corp.can - No. 19-cv-81320, 2020 U.S. Dist. LEXIS 117243 (S.D. Fla. July 2, 2020)

Rule:

An attorney has a duty and obligation to have knowledge of, supervise, or counsel the client's discovery search, collection, and production. An attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to "self-collect" discovery without any attorney advice, supervision, or knowledge of the process utilized. There is simply no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1) and yet have no involvement in, or close knowledge of, the party's search, collection and production of discovery. 

Facts:

Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed its Complaint under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623(a) (the "ADEA"). EEOC alleged that Defendant M1 5100 Corp., d/b/a JUMBO Supermarket, Inc. discriminated against Charging Party Angela Araujo Guerrero (a cook manager) when it reduced her pay and fired her because of her age in violation of Section 4(a) of the ADEA, 29 U.S.C. § 623(a). In its Motion, EEOC sought responsive documents to several of its requests for production, supplemental responses to several of its interrogatories, the production of a privilege log, inspection of M1 5100 Corp.’s electronically stored information ("ESI"), and sanctions against the latter. M1 5100 Corp.’s counsel, Dallan Vecchio, Esq., signed M1 5100 Corp.’s original discovery responses dated April 20, 2020. However, M1 5100 Corp.stated in its response to the Motion that, "[d]uring conferral, EEOC requested M1 5100 Corp.’s specific search efforts regarding ESI. At that time, undersigned counsel was not aware of all the specific efforts made." M1 5100 Corp.’s counsel also represented at the June 29, 2020 hearing that he did not supervise his client's ESI collection efforts. EEOC’s counsel stated at the hearing that the two individuals who searched for documents and information responsive to EEOC’s  discovery requests on M1 5100 Corp.’s behalf are self-interested parties and are employees of the M1 5100 Corp.

Issue:

Should EEOC’s motion for discovery of M1 5100 Corp.’s ESI be granted?

Answer:

Yes.

Conclusion:

In this case, it appeared that M1 5100 Corp.’s counsel left it to the client and the client's employees to determine the appropriate custodians, the necessary search terms, the relevant ESI sources, and what documents should be collected and produced. When combined with EEOC’s assertion that only 22 pages of documents have been produced by M1 5100 Corp.in this complicated age discrimination case, the Court seriously questioned the efficacy of M1 5100 Corp.’s search, collection and document production. The Court will not permit an inadequate discovery search, collection and production of discovery, especially ESI, by any party in this case. Here, M1 5100 Corp.’s counsel seemingly failed to properly supervise his client's ESI collection process, but then he signed off on the completeness and correctness of his client's discovery responses. An attorney's signature on a discovery response is not a mere formality; rather, it is a representation to the Court that the discovery is complete and correct at the time it is made. An attorney cannot properly make this representation without having some participatory or supervisory role in the search, collection, and production of discovery by a client or interested person, or at least having sufficient knowledge of the efficacy of the process utilized by the client. Abdicating completely the discovery search, collection and production to a layperson or interested client without the client's attorney having sufficient knowledge of the process, or without the attorney providing necessary advice and assistance, does not meet an attorney's obligation under our discovery rules and case law. Such conduct is improper and contrary to the Federal Rules of Civil Procedure. Attorneys have a duty to oversee their clients' collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel's guiding hand. M1 5100 Corp. and its counsel clearly did not employ the proper practices in responding to EEOC’s discovery requests.