Crane on Law by James Crane

Last month, the District Court of the Southern Division of the Eastern District of Michigan issued an opinion and order regarding some interesting discovery issues in an overtime collection action in Henry v. Quicken Loans, Inc. (2008 WL 474127). The 422 Henry plaintiffs worked as loan consultants for the defendant. Plaintiffs requested all emails from all the plaintiffs and their 32 team leaders that were generated during a three month period.

In order to facilitate the production and review of such a large volume of data, the plaintiffs had a novel proposal. They suggested that defendant produce all of the emails without a prior privilege review. The plaintiffs offered to review all the documents, narrow the population down to the relevant emails and then run the selected relevant emails by defendants for review so they could raise any privilege issues at that time.

The defendants balked, fearing that this type of clawback provision could be deemed a waiver of privilege in some states. They were reluctant to agree to the provision, and reluctant to produce the relevant tapes because of the costs associated with a pre-production privilege screening.

The plaintiffs filed a motion to compel; ultimately, the Court established the following protocol in order to balance the concerns and needs of both sides:

• Plaintiff would hire a computer expert to retrieve the tapes;
• Then, based on search terms and methods to be negotiated by both sides, he would filter the database for the relevant emails;
• The expert was to act under the direction and control of defense counsel in retrieving the requested emails;
• The expert was required to sign a declaration agreeing to be bound by the Court’s orders and maintain confidentiality; and
• Plaintiff agreed to pick up the costs as long as defense counsel didn’t run those costs up.

Of course, even the best-laid plans can be foiled by attorneys; after all, we’re trained to be difficult. :) They wound up doing the collection and filtering multiple times, to no one’s satisfaction. Ultimately, the Court forced the parties to use the first batch of data that was collected, and charged the defense with the cost of all the subsequent batches.