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Keywords

plaintiffdefendantdiscoveryhearingaffidavitmotiondiscriminationcomplianceobjection
defendantattorneydiscoveryhearingattorney-client privilege

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Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 97 Fair Empl.Prac.Cas. (BNA) 617, 63 Fed.R.Serv.3d 582

Facts

The plaintiffs, African-American police officers, alleged that the Baltimore City Police Department (BCPD) engaged in racial discrimination in the administration of its disciplinary system, with claims extending back to 1992. After the court issued a scheduling order, the plaintiffs served extensive interrogatories and document requests, including requests for electronically stored information. The defendants raised objections based on burdensomeness and expense, but many objections were deemed boilerplate and unparticularized. The parties attempted to resolve their disputes without court intervention but ultimately filed motions for the court's assistance.

It is alleged that the disparate impact and disparate treatment claims extend back to 1992, the commencement date for the misconduct that is the focus of the class claims.

Issue

The main legal issues included whether the defendants could be excused from conducting a complete preproduction privilege review of electronically stored information and how to manage the discovery of such information without imposing unreasonable burdens.

The District Court, Grimm, United States Magistrate Judge, held that: 1 negotiated nonwaiver electronic records production agreement would not excuse parties from undertaking any preproduction privilege review, or doing less preproduction review than was reasonable under the circumstances.

Rule

The court ruled that a negotiated nonwaiver electronic records production agreement does not excuse parties from conducting a reasonable preproduction privilege review, and that a complete review is generally required unless specific undue burdens can be demonstrated.

I ruled on many of the Rule 34 requests, and also ordered the parties to pursue through other methods, discovery into the Defendants' electronically stored information.

Analysis

The court applied the rule by emphasizing the importance of conducting a thorough privilege review before producing electronically stored information. It noted that the defendants' objections were largely unparticularized and that the affidavit provided did not sufficiently demonstrate the burden of complying with the discovery requests. The court ordered the parties to meet and confer to develop a reasonable electronic discovery plan, highlighting the need for cooperation in addressing the complexities of electronic data discovery.

This case thus highlights an unavoidable clash of important policies. On the one hand is the substantive law narrowly confining the attorney-client privilege to its essential purpose, with subject-matter waiver as the price for unprotected disclosure.

Conclusion

The court ordered the parties to meet and confer regarding the discovery of electronically stored information and scheduled a follow-up hearing to approve a reasonable electronic discovery plan.

So ordered.

Who won?

The plaintiffs prevailed in the sense that the court ruled in favor of requiring a reasonable privilege review and a collaborative approach to electronic discovery, emphasizing the need for compliance with discovery rules.

The court ordered the parties to meet and confer regarding discovery of electronically stored information, and at followup hearing with court a reasonable electronic discovery plan would be ordered.

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