Wiginton v. CB Richard Ellis, Inc.

229 F.R.D. 568, 2004 U.S. Dist. LEXIS 15722, 94 Fair Empl. Prac. Cas. (BNA) 627, 2004 WL 1895122
CourtDistrict Court, N.D. Illinois
DecidedAugust 10, 2004
DocketNo. 02 C 6832
StatusPublished
Cited by30 cases

This text of 229 F.R.D. 568 (Wiginton v. CB Richard Ellis, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 2004 U.S. Dist. LEXIS 15722, 94 Fair Empl. Prac. Cas. (BNA) 627, 2004 WL 1895122 (N.D. Ill. 2004).

Opinion

MEMORANDUM OPINIONS AND ORDER

ASHMAN, United States Magistrate Judge.

Plaintiffs have filed a Motion for Costs for Electronic Discovery.1 They argue that Defendant CB Richard Ellis, Inc. (“CBRE”) should bear the costs of searching CBRE’s email backup tapes to find documents containing pornographic terms and images, as well as documents relating to CBRE’s workplace environment generally, due to the large number of these types of documents that have been found in a controlled sampling. CBRE responds that only a small fraction of the emails that have been found contain arguably relevant material and that it should not be forced to pay for the search or production. For the following reasons the Court grants Plaintiffs’ motion in part and denies it in part.

I. Background

Plaintiffs filed this class action complaint against CBRE alleging a nationwide pattern and practice of sexual harassment at the [570]*570CBRE offices.2 As evidence of the hostile work environment prevalent at the offices of CBRE, Plaintiffs seek discovery of pornographic material that they claim was distributed electronically (i.e., via e-mail) and displayed on computers throughout the offices.

CBRE initially produced 94 monthly e-mail backup tapes from 11 offices.3 The backup tapes consist of the e-mails that existed on a given server at the time the backup is made. They are not a complete depiction of every email that existed on the CBRE system during a month. Kroll Ontrack, an electronic discovery service, was retained by Plaintiffs to restore and extract the user e-mails from the tapes, perform searches for keywords and file attachment types, and load the results of the searches onto Kroll’s ElectronicDataViewer (“EDV”), an Internet-based system, for review.

Kroll was instructed to process one monthly tape from each of three offices.4 It correctly searched the August 1999 tape for the Chicago office, the June 1999 tape for the St. Louis office, and inadvertently searched the June 1999 tape for the Columbus office, instead of the Oak Brook office. Kroll recovered over two hundred thousand documents from the tapes, referred to as the “processing set.” Next, Kroll searched the documents for a 92 pornographic term and six disciplinary term search list using a processing engine which is able to search in the text of the documents and in metadata (embedded data in an electronic document). The processing engine can find the terms at the beginning, middle or end of a word or series of symbols. Kroll searched the documents and provided the resulting review set to Plaintiffs’ counsel, who noted that spam had not been removed from the review set. For purposes of this motion, the parties have defined “spam” as anything received from outside the company, or sent solely to someone outside the company from inside the company so that the review set would contain only e-mails transmitted from a CBRE employee to at least one CBRE employee.

Kroll processed the documents again to remove spam from the review set. It also removed documents that did not contain a search term but that would otherwise be counted as a hit due to family cascading — a phenomenon whereby a document related to a document containing a hit are counted as two separate hits even if the related document does not contain a search term. For example, an e-mail that contains a search term with an attachment that does not contain a search term was counted as two hits even if the attachment did not contain a hit. After accounting for spam and family cascading, Kroll provided the parties with the new review set which contained 17,375 documents. At this point, Kroll also gave the parties a new estimate of costs to process the tapes from the 11 offices. Although the original estimates of the project ranged from $46,000 to $61,000, due to the large number of documents containing the pornographic and disciplinary search terms, Kroll revised its cost estimate and advised the parties it could cost up to $249,000 to perform the work.

In the meantime, before the parties had the opportunity to review the most recent processing set, the Court ordered the parties to each choose four terms from the list of search terms developed by Plaintiffs. Plaintiffs instructed Kroll to search for the eight terms and produce all of the documents containing search terms.5 Kroll was also instructed to use the process of de-duplication, the process whereby documents which appear in a user’s mailbox on multiple days are not counted as multiple hits. For example, if the same e-mail appeared in an inbox over a period of several months, only one copy of [571]*571the document would be produced. After deduplication, Kroll found 8,660 documents by searching for the 8 search terms, and by accounting for spam and family-cascading.

At this point, we note that discussing documents in terms of numbers is somewhat inexact. For example, an e-mail containing a search term that exists in a user’s outbox, and also exists in another user’s inbox, counts as two hits, even though it is really one document. A document containing a search term that is sent from one user to another, and returned under the “reply with history” option available on CBRE’s e-mail system counts as two hits. But, because of de-duplication, an e-mail that is present multiple times in one user’s mailbox is not counted multiple times. So although talking about documents in terms of numbers is not entirely accurate, the search system was designed to get an idea of how frequently the documents containing search terms were being passed around by CBRE users within or between the offices. Because spam was eliminated, it means the picture does not present an entirely accurate view of any other pornographic e-mails that maybe have been available on the CBRE e-mail system, or how often users are opening such documents in view of other people. The numbers also do not reflect e-mails that were not captured on backup tapes.

The parties are able to view the documents on Kroll’s EDV, a software program designed for viewing electronic documents such as these. One problem with the EDV, however, is that the search engine is not as advanced as the initial processing search engine that was used to find the 8,660 documents. The EDV search engine can find words with root extenders (e.g. “kiss!” finds kiss, kissing, kissed), but unlike the original search engine, the EDV search engine only finds search terms located at the beginning of words (so “moral” is a hit on the original search, but not through the EDV). The parties also discovered that family cascading was still a problem. Therefore, in the end, the parties reviewed approximately 1/3 of the documents (2,667), and have agreed that the remaining documents are “non-responsive.” The Court, therefore, likewise considers the remaining documents as non-responsive.

The parties have manipulated the numbers and categorized the 8,660 documents in various ways that supports their respective positions. Plaintiffs claim that 567 of the documents are responsive, i.e., are pornographic or are documents reflecting CBRE policies and procedures. Therefore they calculate that 567 of the 2,667 documents were responsive, for a 21.3% responsive rate. This is technically accurate — 21.3% of the documents that the parties reviewed were responsive.

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229 F.R.D. 568, 2004 U.S. Dist. LEXIS 15722, 94 Fair Empl. Prac. Cas. (BNA) 627, 2004 WL 1895122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiginton-v-cb-richard-ellis-inc-ilnd-2004.