Defense Counsel’s Unilateral Modification of Parties’ Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email
Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008)
This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants. After defense counsel objected to plaintiffs’ requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004. They proposed that, after they reviewed all the emails and narrowed them down to those they thought were relevant, they would give defendants an opportunity to review this reduced set of emails and raise any attorney client privilege or other objections they might have and retrieve items that should be protected. Fearing that this "claw back" provision could be deemed a waiver of the privilege in some states, defense counsel was relunctant either to agree to the provision or to produce the relevant back up tapes because of the exceedingly expensive process of defense counsel screening them for privilege before production.
Plaintiffs filed a motion to compel to resolve the dispute and a hearing was held. The court established a protocol that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs. Under the protocol, plaintiffs’ computer forensic expert, Mark Lanterman, was to retrieve from defendants’ computer back up tapes all of the emails for the months of April, May and June of 2004. Based on search terms and methods to be worked out by the attorneys for both sides, Mr. Lanterman, "at Plaintiffs’ reasonable expense for his services and the electronic copying expenses," was to filter this database for the team leaders and hundreds of plaintiffs. Mr. Lanterman was to act under the "direction and control" of defense counsel in retrieving the requested emails from the backup tapes. The searching and filtering of defendants’ database by Mr. Lanterman would be limited to the terms agreed upon by the parties. Further, Mr. Lanterman was required to sign a declaration agreeing to the agency relationship with and under the direction and control of defense counsel, to be bound by the court’s orders and to maintain confidentiality. At the hearing, while plaintiffs’ counsel agreed to pay the reasonable expenses of Mr. Lanterman, he expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a "carte blanche" to run up the costs of the screening procedure at plaintiffs’ expense.