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Small v. University Medical Center of Southern Nevada

United States District Court, D. Nevada

April 14, 2014

DANIEL SMALL, et al., Plaintiff,
v.
UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, Defendants.

SPECIAL MASTER DANIEL B. GARRIE E-DISCOVERY SUMMARY AND ORDER

DANIEL B. GARRIE, District Judge.

BACKGROUND AND PRIOR PROCEEDINGS

The Special Master was appointed on March 3, 2014. (Dkt. No. 149.) On March 10, 2014, the parties, counsel for all parties, and ESI consultants for all parties, met with Special Master Daniel Garrie and United States Magistrate Judge Peggy Leen in chambers. (Dkt. No. 151.) On March 18, 2014, Special Master Garrie memorialized his directives to the parties in a written order. (Dkt. No. 154.)

On March 18, 2014 Order Special Master Garrie set a hearing schedule, with hearings on April 4, 2014 and April 7, 2014. Present on behalf of Plaintiffs were Counsel Jon Tostrud, Marc Godino, and David O'Mara and ESI consultants Douglas Forrest and Bruce Pixley. Present on behalf of Defendant were Counsel Margaret Foley and Cayla Witty, ESI vendor Joe Edmondson, and Dean Schaibley, Network Security Administrator from the UMC IT Department. In addition, the following UMC IT individuals attended the April 7, 2014 hearing: Jason Clark, Sr. Systems Administrator, Marilyn Susan Kisner, IT Customer Support Manager, and Shane Lattin, Network Engineer. See Exhibit A (April 4, 2014 rough hearing transcript); Exhibit B (April 7, 2014, hearing transcript.)

At the April 7, 2014 hearing, Special Master Garrie ordered an additional telephone hearing on April 10, 2014. See Exhibit B at 234:01-236:21 Present at the April 10, 2014 telephonic hearing were Counsel and their respective ESI Consultants and ESI vendor, and no individuals from UMC's IT Department. See Exhibit C (April 10, 2014, rough hearing transcript)

The Special Master conducted full day hearings on April 4, 2014 and April 7, 2014 with counsel, the parties' representatives, and consultants regarding UMC's ESI collection and production issues, as well as UMC's efforts to preserve discoverable materials pursuant to the Plaintiffs' litigation hold/preservation letters, and UMC's search of the ESI collected.

These hearings identified multiple potential failures by UMC with respect to the collection, preservation, and search of the ESI by UMC.

ISSUES WITH UMC COLLECTION EFFORTS

A. UMC ESI Collection was Incomplete as of April 10, 2014.

Among other things.

1. UMC did not collect the laptops of Doug Spring, Director of Personnel Operations, and John Mumford, Sr. Human Resources Analyst, both potential sources of relevant ESI. See Exhibit D, UMC Custodian Interviews (Both John Mumford and Doug Spring stated that they had personal laptops that they used to conduct UMC business, including SEIU labor negotiations in 2009.)
2. UMC did not include Claudette Myers who is the Executive Assistant to John Espinoza, Chief Human Resources Officer at UMC, in the initial custodian group even though Mr. Espinoza stated in his custodian interview that Ms. Myers maintained electronic filing, regularly accessed both Mr. Espinoza's calendar and e-mail, archived Mr. Espinoza's e-mail and calendars, and sent email and documents on Mr. Espinoza's behalf. See Exhibit D, 15 to 17.
3. UMC never collected ESI from any UMC network file shares. See Exhibit B (hearing transcript from 04/07/14) at 116:2-10 (Mr. Schaibley states that UMC did not collect any of the network file shares.) This means that UMC never collected any information from the UMC payroll network file share. See Exhibit D (custodian interviews) at 8, 13, 21, and 22 (Custodian interviews taken of John Mumford, Brian Brannman, John Mumford, and Doug Spring all indicate that they stored documents in UMC network file shares.)
4. UMC did not collect ESI from the UMC Blackberry server for any of the twenty seven custodians. See Exhibit B (hearing transcript from 04/07/14) at 63 to 67 (Mr. Clark states that he was never instructed to preserve or collect communications or data from the UMC Blackberry server environment.)
5. UMC failed to review the collection scripts, and, as a result, failed to identify errors that occurred in the collection. See Exhibit A (hearing transcript from 04/04/14) at 43:1-5 (Counsel Foley stated that she was never informed of collection errors by UMC or UMC ESI vendor.)
6. UMC's IT staff did not verify that they had provided to UMC's ESI vendor all the data they had collected. See Exhibit B (hearing transcript from 04/07/14) at 138:24-25; 139:1-15 (Mr. Edmonson indicates not all of UMC ESI collection was searched by him in response to the multiple production requests and attempts.) The Special Master notes that, because not all ESI collected by UMC was searched for production, the entire production discussion before the Magistrate Judge Leen was based on a false premise.

B. UMC Failed to Perform Custodian Interviews.

UMC failed to perform custodian interviews and this contributed to many of the above collection issues. See Exhibit A (hearing transcript from 04/04/14) at 50:3-25; 51:1-5 (UMC states that no custodian interviews were performed by it on or before the Special Master proceedings.)

C. UMC and UMC ESI Vendor Did Not Create Any Chain of Custody Paper Work for any of the ESI that was Collected by the UMC IT Department.

On March 18, 2014, Special Master Garrie ordered UMC to create Chain-of-Custody paper work before the hearing on April 4, 2014. While UMC did submit a chain-of-custody, it was inadequate for its purpose. See Exhibit A (hearing transcript from 04/04/14) from 46 to 48. Specifically, the chain-of-custody failed to record several things, including (i) what sources UMC collected data from for each of the twenty seven (27) custodians, (ii) how they identified the ESI, (iii) how they collected the ESI, (iv) how the ESI was preserved, (v) what criteria were used to identify the ESI that was collected.

ISSUES WITH UMC PRESERVATION EFFORTS

UMC was informed by Plaintiffs and the Court multiple times of its obligation to preserve information, including on: August 6, 2012, November 6, 2014, March 10, 2014, March 18, 2014 and April 4, 2014. See e.g., Exhibit E (preservation letter sent to UMC); Exhibit F (internal UMC email informing patient service leaders to preserve documents); Exhibit G (deposition testimony of Mr. Espinoza where he states he is aware of his duty to preserve documents). Despite this it appears that UMC did not take the necessary steps required to ensure preservation of relevant ESI by all custodians. See Exhibit B (hearing transcript from 04/07/14) 84:1-15 (Ms. Kisner states she did not receive a preservation notice and yet Ms. Kisner is one of the UMC IT employees responsible for wiping blackberry devices.)

It appears that UMC has not preserved:

1. Data on the UMC Intranet. See Exhibit B (hearing transcript from 04/07/14) at 45:10-18; 46:12-20 (UMC states that did not collect or preserve ESI that existed on its intranet.)
2. UMC network file shares. See Exhibit B (hearing transcript from 04/07/14) at 45:10-18; 46:12-20 (UMC states that did not collect or preserve ESI ...

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