UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES EQUAL )
EMPLOYMENT OPPORTUNITY )
COMMISSION, )
)
Plaintiff, ) Case No. 17-cv-1978 (CKK/GMH)
)
v. )
)
THE GEORGE WASHINGTON )
UNIVERSITY, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
The Equal Employment Opportunity Commission (“EEOC”) filed this action on behalf of
Sara Williams against The George Washington University (“Defendant” or “GW”) pursuant to the
Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. EEOC alleges that Ms. Williams, who was employed as Executive Assistant to
GW’s Director of Athletics, Patrick Nero, was treated less favorably—by being paid less for equal
work and being denied employment opportunities and advancement—than a male comparator,
Michael Aresco, who was hired as Special Assistant to Mr. Nero. The dispute here concerns four
requests for production of documents served by EEOC that Defendant claims are overbroad and
unduly burdensome, arguing primarily that compliance with the requests as written would impose
costs that are not proportional to the needs of the case. 1 Because Defendant is largely correct,
EEOC’s requests for production shall be narrowed as discussed below.
1
Many of the documents relevant to this dispute are filed under seal because they include confidential information.
The undersigned reviewed the following documents in connection with this motion: (1) the Complaint (ECF No. 1);
I. BACKGROUND
Ms. Williams earned a salary of between $38,500 and $40,000 per year working as
Executive Assistant to Mr. Nero from September 2014 through December 2016, at which point
she was promoted to a different position in a different GW department. ECF No. 1, ¶ 17; ECF No.
47-4 at 2; Mar. 12 Tr. at 6. According to the Complaint, in September 2015, Mr. Aresco, who was
then employed as an Assistant Athletic Director at GW, began to perform the duties of what would
become the position of Special Assistant to Mr. Nero. ECF No. 1, ¶ 18. The Special Assistant
position was created in January 2016 and Mr. Aresco was officially hired for that position in
February 2016, receiving a salary of approximately $77,500 per year until March 2017, when he
left GW’s Athletics Department. Id., ¶ 29; ECF No. 47-2 at 2–3; Mar. 12 Tr. at 5, 12. EEOC
alleges that, during her tenure at the Athletics Department, Ms. Williams, as Executive Assistant,
performed substantially the same work as did Mr. Aresco when he began performing the duties of
Special Assistant. ECF No. 1, ¶¶ 24, 32. Nevertheless, she claims that from February 2016 (when
Mr. Aresco became Special Assistant) until December 2016 (when Ms. Williams left the Athletics
Department), GW paid her approximately $40,000 less per year than it paid him. Id., ¶¶ 17, 29.
The agency also asserts that GW intentionally and “with malice or reckless indifference” denied
Ms. Williams employment opportunities and advancement because of her sex. Id., ¶¶ 38, 41–42.
EEOC seeks a total of $480,000 in damages (plus prejudgment interest) on Ms. Williams behalf:
specifically, pursuant to the Equal Pay Act, EEOC seeks back pay in the amount of approximately
(2) EEOC’s letter brief to Judge Kollar-Kotelly dated Jan. 29, 2020 (“EEOC Letter Brief”) (on file with the Chambers
of the undersigned); (3) Defendant’s letter brief to Judge Kollar-Kotelly dated Jan. 31, 2020, and exhibits (“GW Letter
Brief”) (ECF No. 47-5 at 2–28 (filed under seal)); (4) Defendant’s “Notice of Cost Discovery Estimates” (ECF No.
43 (filed under seal)); (5) EEOC’s response to Defendant’s Notice of Cost Discovery Estimates (ECF No. 42 (filed
under seal)); (6) Sealed transcript of March 12, 2020 proceedings before the undersigned (“Mar. 12 Tr.”) (on file with
the Chambers of the undersigned); (7) Defendant’s supplemental brief (ECF No. 47 (filed under seal)); and (8)
EEOC’s corrected brief in response to GW’s supplemental brief (ECF No. 50 (filed under seal)).
2
$90,000 and $90,000 in liquidated damages; 2 pursuant to Title VII, EEOC seeks the statutory
maximum of $300,000 in compensatory and punitive damages. ECF No. 47 at 9; ECF No. 47-3
at 4; Mar. 12 Tr. at 22–24.
During discovery, EEOC served GW with 25 requests for production (“RFPs”). ECF No.
47 at 10. As noted, four of those are at issue here. Three seek the work emails of the individuals
involved—Mr. Aresco, Ms. Williams, and Mr. Nero—and one seeks information related to
workplace complaints about Mr. Nero. Specifically, RFP No. 10 seeks “all emails sent from or
received by any email account maintained by Defendant for [Mr.] Aresco’s use between
September 1, 2015 [when he began performing the functions of the Special Assistant] and the end
of [his] employment with Defendant” in March 2017. ECF No. 47-5 at 8. RFP No. 11 seeks “all
emails sent from or received by any email account maintained by Defendant for [Ms. Williams’]
use between September 15, 2014 [when she began her employment as Executive Assistant] and
December 11, 2016,” when she left the Athletics Department. Id. at 9. According to EEOC, those
requests were designed to discover information “describing or demonstrating what [Mr. Aresco’s
and Ms. Williams’] job duties were.” Id. at 8–9. RFP No. 24 seeks “[a]ny and all emails sent from
or received by any email account maintained by Defendant for [Mr.] Nero’s use during his
employment with Defendant”—that is, from April 2011 until June 2018—in order, EEOC
contends, (1) to help it assess “whether, or to what extent, [Mr. Nero] involved [Mr.] Aresco or
[Ms.] Williams in accomplishing [his] priorities and goals, [thus] shedding light on whether the
two performed substantially equal work”; and (2) to uncover evidence of Mr. Nero’s “bias in favor
of male employees, including his efforts to groom [Mr.] Aresco for advancement to [Ms.] Williams
2
The $90,000 figure appears to be calculated by multiplying the approximately $40,000 difference between Ms.
Williams’ and Mr. Aresco’s yearly salary by the approximately 2.25 years that Ms. Williams was employed as
Executive Assistant in the Athletics Department: $40,000 x 2.25=$90,000.
3
detriment.” ECF No. 47 at 10; EEOC Letter Brief at 2 & Exh. F; Mar. 12 Tr. at 7–8. RFP No. 20
seeks documents “relating to any report or complaint . . . that [Mr.] Nero subjected any employee
or student to any discrimination, harassment, retaliation, abuse, mistreatment, or inappropriate
conduct.” ECF No. 47-5 at 10. GW objected to each of those RFPs to the extent that they sought
privileged material, as well as on grounds of overbreadth, burden, proportionality, and relevance.
ECF No. 47-5 at 6, 9–10; EEOC Letter Brief, Exh. F. In addition, GW objected to RFP No. 24 to
the extent that it sought information protected by the Family Educational Rights and Privacy Act
(“FERPA”), 20 U.S.C. § 1232g, which generally safeguards the privacy of student educational
records. EEOC Letter Brief, Exh. F. With regard to RFP Nos. 10, 11, and 24, GW offered to meet
and confer regarding providing a sampling of the emails of Mr. Aresco, Ms. Williams, and Mr.
Nero in an effort to narrow the requests. ECF No. 47-5 at 9; EEOC Letter Brief, Exh. F.
To that end, GW offered a number of compromises while conferring with EEOC, including
(1) producing a random sampling of the emails of Mr. Aresco, Ms. Williams, and Mr. Nero; (2)
producing emails from those three custodians that hit certain search terms; and (3) producing
emails between each of those three custodians and certain senders or recipients to be identified by
EEOC using reports, produced by GW, of all the individuals with whom the custodians had
emailed during the time frames specified in the RFPs and the total number of emails associated
with each sender and recipient. ECF No. 47 at 11–12. EEOC rejected each of those suggestions.
Id. GW then offered to review and produce all non-privileged emails between Mr. Nero and Mr.
Aresco and between Mr. Nero and Ms. Williams, as well as non-privileged emails between Mr.
Nero and third-parties that mention Mr. Aresco or Ms. Williams. Id. at 12. Rejecting that approach
as well, EEOC continues to press for all the emails and documents encompassed in its original
requests, with one concession: it has agreed to limit Defendant’s response to RFP No. 24 (seeking
4
all of Mr. Nero’s emails) to all emails from the timeframe of September 1, 2014, when Ms.
Williams began her employment in the Athletics Department, through March 31, 2017, when Mr.
Aresco left the Athletics Department, “and to employ search terms to obtain responsive emails
from the rest of the timeframe” in which Mr. Nero worked at GW—that is, from April 2011 until
September 2014 and from April 2017 until June 2018. ECF No. 50 at 15.
As to its response to RFP No. 20, which relates to complaints against Mr. Nero, GW argues
that it should be required to produce, at most, “complaints of other gender-pay discrimination
claims” against Mr. Nero, rather than all documents relating to “‘any discrimination, harassment,
retaliation, abuse, mistreatment, or inappropriate conduct’ on the basis of any characteristic, and
without any temporal limitation.” ECF No. 47 at 27–29 (quoting RFP No. 20). EEOC, for its part,
rejects any such narrowing of RFP No. 20 and maintains its demand for any reports or complaints
that Mr. Nero “subjected any employee or student to any discrimination or other inappropriate
conduct.” ECF No. 50 at 42.
The parties originally brought their dispute to the attention of Judge Kollar-Kotelly, filing
letter briefs with her chambers in January 2020. GW asserted that the requests for the emails of
Mr. Aresco, Ms. Williams, and Mr. Nero were overbroad insofar as those accounts would include
significant amounts of irrelevant information and also because review and production of those
emails would be expensive and disproportionate to the needs of the case. GW Letter Brief at 1–2.
Judge Kollar-Kotelly held a conference on February 19, 2020, and thereafter ordered GW to (1)
provide a cost estimate for the search and production of documents which it found reasonable in
response to RFP Nos. 10–11; (2) provide a cost estimate for the search and production of all of the
documents that the EEOC requests in RFP Nos. 10–11; (3) produce the documents it had agreed
to produce in response to RFP No. 24; and (4) provide a cost estimate for the additional search and
5
production of all of remaining emails from Mr. Nero’s email account. Minute Order dated Feb.
19, 2020.
In declarations filed, as directed, with the Court in March 2020, GW estimated that
reviewing all the emails EEOC has requested in connection with RFP No. 10—between 45,000
and 50,000 emails—and RFP No. 11—between 21,000 and 25,000 emails—would cost between
$181,000 and $225,100. ECF No. 43 at 3–4. Responding to RFP No. 24 as written would require
reviewing between 158,000 and 181,000 emails and cost between $432,900 and $529,700. Id. at
7. The totals reflected “additional costs of approximately $580,200–$707,500 over and above the
$45,450–$59,350 in costs that already [had] been incurred and/or [would] be incurred by . . . [GW]
in responding to [those] RFPs in accordance with . . . its proposals” and with Judge Kollar-
Kotelly’s Order. Id. at 9. Those estimates were based on costs associated with a first-level review
of documents by contract attorneys at an e-discovery vendor to find and redact information
protected by the attorney-client privilege, the work product doctrine, and FERPA, and to code the
documents for relevance; and a second-level review by attorneys at Gibson, Dunn & Crutcher
(“Gibson Dunn”) (counsel of record for GW in this matter) of all documents marked relevant by
the contract attorneys, all documents with redacted information, and an additional random sample
of 10 percent of the documents reviewed at the first level for quality control. Id. at 7–8. EEOC
objected to those estimates as overblown, arguing that “[a]n attorney-performed document-by-
document review of all documents to identify privileged or other protected information, followed
by a second attorney review of all the identified protected materials” was “eminently
unreasonable.” ECF No. 42-1 at 3. Instead, EEOC proposed that the e-discovery vendor should
“perform filtering and targeted searches to identify” potentially privileged or protected materials
and then those documents should be reviewed once by either the e-discovery vendor or by Gibson
6
Dunn attorneys to “confirm that they contain protected material,” rather than engaging in
document-by-document review of all documents before production to EEOC. Id. at 3–4, 5–8.
EEOC further found the hourly rate used by Gibson Dunn in its estimates to be unreasonably high
and suggested using the so-called Laffey rate instead. Id. at 4–5.
After Judge Kollar-Kotelly referred this dispute to the undersigned, a hearing was held on
March 12, 2020, to address the disputes raised in the parties’ submissions. At the end of that
hearing, the undersigned ordered supplemental briefing to address, among other things, the hourly
rate that GW actually pays for Gibson Dunn attorneys to perform work on its behalf and a cost
estimate for GW to review and produce Mr. Nero’s emails only for the period between September
1, 2014, and March 31, 2017, in response to RFP No. 24. Mar. 12 Tr. at 121–22. The undersigned
also sought briefing on certain legal issues, including whether it is appropriate for a court to dictate
to a party the manner in which it should conduct its review for privileged material and, even if it
is not, whether for the purposes of its proportionality review, the Court should consider not the
higher cost of pre-production document-by-document review, but rather the lower cost that would
be incurred by the use of targeted searches and filtering to identify protected material in
conjunction with a protective order allowing a party to claw back any privileged material produced
to the other party. 3 Id. at 123. Following the hearing, GW filed a declaration from a Gibson Dunn
attorney attesting that in this matter GW has actually paid 100 percent of the legal expenses that
Gibson Dunn charged through December 2019. ECF No. 47-7 at 3. Because that work was
charged at rates slightly higher than those used for the prior cost estimates, those estimates have
3
The undersigned also encouraged the parties to continue to confer in an effort to resolve their differences prior to the
Court issuing a written opinion. Id. at 126. That last suggestion was, alas, in vain. To be sure, after the hearing, GW
offered to meet and confer with EEOC to discuss a compromise as to RFP Nos. 10, 11, and 24, while noting that if
EEOC continued to maintain “that there is no compromise that it would be willing to accept short of all emails
belonging to [Mr.] Aresco, [Ms.] Williams, and [Mr.] Nero from the requested timeframes,” such a conference would
not be productive. ECF No. 47-6 at 2. EEOC did not respond. ECF No. 47 at 15.
7
been adjusted upward. Id. at 2–3. Moreover, Gibson Dunn solicited estimates from two different
e-discovery vendors and thus provided the Court with costs based on the differing appraisals it
received from them. Mar. 12 Tr. at 40–41. For RFP No. 10, seeking Mr. Aresco’s emails from
September 15, 2015, until March 31, 2017, the total estimated cost of review of those
approximately 50,000 emails at the rates charged is now $130,600 (based on the estimate provided
by the cheaper vendor) to $153,600 (based on the estimate provided by the more expensive
vendor); for RFP No. 11, seeking Ms. Williams’ approximately 25,000 emails for the same period,
the total estimate is now $60,900 to $83,500. ECF No. 47-7 at 4. That is, responding to those two
RFPs as written would incur legal fees anywhere from $191,500 to $237,100. GW estimates that
reviewing the approximately 180,000 emails in Mr. Nero’s account called for by RFP 24 (as
written) would cost anywhere from $458,100 to $558,600. Id. at 5. However, EEOC has backed
off its demand for all of Mr. Nero’s emails for the entire seven-year period he was employed by
GW. If the applicable time period were limited to the two-and-a-half year period between
September 1, 2014, and March 31, 2017, which EEOC has now proposed, GW estimates that the
cost would be somewhere between $243,700 and $296,300 to review between 84,000 and 96,000
emails. 4 Id. at 6. In total, that amounts to between $435,200 and $533,400 for production of
documents responsive to these three RFPs using the shortened time period for RFP No. 24. The
average of those two estimates (which, for the sake of simplicity, the Court will use as the total
cost of compliance with the RFPs as written) is $484,200. Id. at 3, 6. In contrast, GW’s proposed
compromise, by which it would review and produce all non-privileged emails between Mr. Nero
and Mr. Aresco and between Mr. Nero and Ms. Williams (together, approximately 12,000 emails),
4
There is no estimate for the cost of responding to RFP No. 24 in accordance with EEOC’s concession, by which it
seeks all responsive emails for the period of September 1, 2014, to March 31, 2017, and, additionally, a sampling of
documents for the periods from April 2011 until September 2014 and from April 2017 until June 2018. Obviously,
however, that cost estimate would exceed the range of $243,700 and $296,300.
8
as well as all non-privileged emails between Mr. Nero and third-parties that mention Mr. Aresco
or Ms. Williams (approximately 5,000 emails), would cost between $47,000 and $61,100 (or an
average of $54,000), using the same review procedures described above. 5 ECF No. 47 at 12; ECF
No. 47-4 at 4–5.
II. LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery of “any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
of the case.” Fed. R. Civ. P. 26(b)(1). Relevance “has been construed broadly to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that
is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see
also Food Lion, Inc. v. United Food & Commercial Workers Int'l Union, AFL–CIO–CLC, 103
F.3d 1007, 1012 (D.C. Cir. 1997) (“Generally speaking, ‘relevance’ for discovery purposes is
broadly construed.”).
However, “the relevance standard of Rule 26 is not without bite,” and will not allow parties
to “explore matter which does not presently appear germane on the theory that it might conceivably
become so.” Food Lion, 103 F.3d at 1012 (quoting In re Fontaine, 402 F. Supp. 1219, 1221
(E.D.N.Y. 1975)). Moreover, the rule was amended in 2015 to emphasize the need
for proportionality in discovery and to “encourage judges to be more aggressive in identifying and
discouraging discovery overuse.” Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015
amendment. Thus, under Rule 26, “discovery must be relevant and ‘proportional to the needs of
the case.’” Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., 322 F.R.D. 1, 6 (D.D.C. 2017)
(quoting Fed. R. Civ. P. 26(b)(1)). Indeed, “all discovery is subject to the balancing test . . . that
5
As noted, Judge Kollar-Kotelly ordered GW to produce those emails prior to her referral of the remaining disputes—
such as whether GW should be ordered to produce some or all of the remaining emails—to the undersigned.
9
requires a court to limit the discovery ‘otherwise allowed by these rules’ if the burden outweighs
its likely benefit.” Intervet, Inc. v. Merial Ltd., 252 F.R.D. 47, 49 (D.D.C. 2008) (quoting Fed. R.
Civ. P. 26(b)(2)(C)). To determine whether the likely benefit outweighs the burden or expense of
the requested discovery, courts consider a number of factors: the importance of the issues at stake
in the action; the amount in controversy; the parties’ relative access to relevant information; the
parties’ resources; the importance of the discovery in resolving the issues; and the actual burden
or expense of the requested discovery. See Oxbow Carbon, 322 F.R.D. at 6. “‘[N]o single factor
is designed to outweigh the other factors in determining whether the discovery sought is
proportional,’ and all proportionality determinations must be made on a case-by-case
basis.” Oxbow Carbon, 322 F.R.D. at 6 (alteration in original) (quoting Williams v. BASF
Catalysts, LLC, No. 11-cv-1754, 2017 WL 3317295, at *4 (D.N.J. Aug. 3, 2017))).
While the initial responsibility of establishing relevance lies with the party seeking the
information, “the burden is on the refusing party to show that the movant’s request is burdensome,
overly broad, vague or outside the scope of discovery.” United States v. Kellogg Brown & Root
Servs., Inc., 284 F.R.D. 22, 33 (D.D.C. 2012): see also Mortg. Resolution Servicing, LLC v.
JPMorgan Chase Bank, N.A., No. 15 Civ. 0293, 2016 WL 3906712, at *3 (S.D.N.Y. July 14, 2016)
(“In general, when disputes are brought before the court, the parties’ responsibilities remain the
same as they were under the previous iteration of the rules, so that the party resisting discovery
has the burden of showing undue burden or expense.”).
10
III. DISCUSSION
A. RFP Nos. 10, 11, and 24 6
As noted, the dispute over these RFPs focuses on whether the requested production is
proportional to the needs of the case, balancing the importance of the issues at stake, the amount
in controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery, and the expense of the proposed discovery to determine whether the
burden or expense outweighs the benefit of the discovery. Some of these factors are more hotly
contested than others; indeed, the parties appear to agree as to two of them. For that reason, the
Court takes the six factors out of order and addresses the less complex ones first.
1. The Importance of the Issues at Stake
This first factor “calls for the Court to ‘examine[ ] the significance of the substantive issues
[at stake in the litigation], as measured in philosophic, social, or institutional terms.’” Oxbow
Carbon, 322 F.R.D. at 7 (some internal quotation marks omitted) (alterations in original) (quoting
Arrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, No. 5:15-CV-37, 2017 WL 876266, at *4
(E.D.N.C. Mar. 3, 2017)). The advisory committee’s notes to Rule 26 recognize that “many cases
in public policy spheres, such as employment practices, free speech, and other matters, may have
importance far beyond the monetary amount involved.” Fed. R. Civ. P. 26, advisory committee’s
note to 2015 amendments (quoting Fed. R. Civ. P. 26, advisory committee’s note to 1983
6
The Court deals with these three RFPs together for a number of reasons. First, they each request production of
emails and will be subject to the same procedures for review and production. Second, GW’s proposal links the three
RFPs insofar as its suggestion to produce emails in response to RFP Nos. 10 and 11—between Mr. Aresco or Ms.
Williams, on the one hand, and Mr. Nero, on the other—allows it to limit review and production in response to RFP
No. 24 to emails between Mr. Nero and third-parties mentioning Mr. Aresco or Ms. Williams because emails between
either of those two individuals and Mr. Nero will already have been captured in its response to RFP Nos. 10 and 11.
Third, the three RFPs complement each other, at least insofar as they are designed to discover evidence of the actual
job duties of Mr. Aresco and Ms. Williams.
11
amendments). Here, GW acknowledges that there are important issues at stake in this case under
the Equal Pay Act and Title VII. Mar. 12 Tr. at 21.
2. The Parties’ Resources
This factor generally focuses on the ability of the responding party to bear the burden or
expense of producing the requested discovery. See, e.g., Oxbow Carbon, 322 F.R.D. at 8.
Nonetheless, “consideration of the parties’ resources does not foreclose discovery requests
addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy
party.” Fed. R. Civ. P. 26, advisory committee’s note to 2015 amendments. Here, however, GW
has not resisted responding to these discovery requests based on an inability to pay. Mar. 12 Tr.
at 33; see also Oxbow Carbon, 322 F.R.D. at 8 (finding that this factor weighed in favor of granting
the discovery request where the responding party did not object based on an inability to pay).
3. Access to Relevant Material
“In considering this factor, courts look for ‘information asymmetry’—a circumstance in
which one party has very little discoverable information while the other party has vast amounts of
discoverable information.” Oxbow Carbon, 322 F.R.D. at 8. In such a case, the burden will
usually, and properly, “lie[ ] heavier on the party who has more information.” Id. (quoting Fed.
R. Civ. P. 26, advisory committee’s note to 2015 amendments).
EEOC argues that it “has virtually no access to the relevant information contained in the
emails at issue” and that “without production of the entire accounts (for the requested timeframes),
Defendant will be able to keep EEOC at a severe disadvantage in its ability to compare [Ms.]
Williams’ and [Mr.] Aresco’s work communications.” ECF No. 50 at 20. EEOC exaggerates. It
has access to Ms. Williams, who clearly has significant relevant knowledge, having worked for
Mr. Nero both before and during the period that Mr. Aresco began performing the duties of Special
12
Assistant. Moreover, EEOC previously had access to Ms. Williams’ email account and Ms.
Williams provided relevant materials from that account to it both during and subsequent to the
EEOC investigation. Mar. 12 Tr. at 114–15; see also Minute Order dated Mar. 13, 2020. EEOC
plans depose Mr. Aresco and Mr. Nero. Mar. 12 Tr. at 36. Perhaps most importantly, GW has
agreed to produce documents from these email accounts. It has offered and, indeed, has been
ordered, to produce such emails. See Minute Order dated Feb. 19, 2020 (ordering Defendant to
“produce all documents sent from or received by any email account maintained by Defendant for
Patrick Nero which were sent from or received by Sara Williams or Michael Aresco or were sent
from or received by a third-party mentioning Sara Williams or Michael Aresco.”). Thus, while
there may be some information asymmetry here, this factor does not weigh heavily in favor of
either party’s position.
4. The Amount in Controversy
This factor is rarely interpreted in depth. Many courts (including this one) appear to base
the amount in controversy on some estimate of the defendant’s worst-case scenario—that is, on
the defendant’s exposure if everything were to be decided against it. See, e.g., Oxbow Carbon,
322 F.R.D. at 7–8 (calculating the amount in controversy as the amount that the plaintiff sought to
recover in allegedly illegal fuel surcharges, trebled pursuant to statute); see also Schultz v. Sentinel
Ins. Co., No. 4:15-cv-4160, 2016 WL 3149686, at *7 (D.S.D. June 3, 2016) (rejecting the
defendant’s estimation of the value of the case as the amount in compensatory damages the
plaintiff could recover if she prevailed because the plaintiff also sought punitive damages based
on a claim that the insurer had a “company-wide policy of knowingly denying valid claims,” which
“had the potential to affect [the insurer’s] alleged business practices and to remedy the situation
for many insureds”). At least one court has indicated that the amount in controversy for the
13
purposes of the proportionality analysis should take into account both the worst-case scenario for
the plaintiff (a recovery of zero) and the worst-case scenario for the defendant in order to identify
“a foreseeable range of damages.” Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364
(D. Md. 2008).
Here, perhaps unsurprisingly, Defendant focusses on the figure of $90,000—the amount of
back pay Plaintiff seeks—in making its comparison (although it does not, of course, concede that
Plaintiff is entitled to such a sum). ECF No. 47 at 9 n.2, 13, 18. It argues that “EEOC’s $480,000
estimate of [Ms.] Williams’ alleged damages is artificially inflated” because (1) liquidated
damages (which would double the amount of back pay due) are discretionary and not appropriate
here, where GW allegedly acted in good faith, and (2) Plaintiff’s claim for the $300,000 statutory
maximum under Title VII is either duplicative of her claim for back pay or would have to be
premised on “alleged emotional distress, which has not been adequately pled.” Id. at 9 n.3. EEOC
counters that GW’s arguments as to the merits of Plaintiff’s claims are inappropriate because “[t]he
amount in controversy is not based on what a party actually obtains after trial of the issues, but
what a party could obtain.” ECF No. 50 at 22.
On this record, where the parties have not seriously briefed the issue, EEOC has the better
argument. As noted, this Court has in prior cases measured the amount in controversy for the
purposes of proportionality review by taking in to account the upper range of the defendant’s
potential exposure. Moreover, in other situations—for example, in determining whether the
amount-in-controversy requirement for diversity jurisdiction has been satisfied—“the sum claimed
by the plaintiff controls if the claim is apparently made in good faith,” as long as it does not
“appear[ ] certain that the claim asserted in the complaint will be for less than the jurisdictional
amount.” Modis, Inc. v. Infotran Sys., Inc., 674 F. Supp. 2d 160, 162 (D.D.C. 2005) (quoting St.
14
Paul Mercury Indem, Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)). While there may be some
situations in which using a foreseeable range of damages may be useful—especially if the parties
have conferred and agreed on such a range, see Mancia, 253 F.R.D. at 364 (noting that the court
required the parties to confer to come up with a range of damages to be used “to quantify a
workable ‘discovery budget’ that is proportional to what is at issue in the case”), here, the possible
range would cover amounts from $90,000 (or, perhaps, $0) to $480,000, which seems too wide a
domain to be helpful. The undersigned will therefore use $480,000 as the amount in controversy.
5. The Importance of the Discovery in Resolving the Issues
This factor asks “whether ‘[t]he issues at stake are at the very heart of [the] litigation.’”
Oxbow Carbon, 322 F.R.D. at 8. In analyzing that question, a court should consider whether the
discovery request as written appears designed to capture relevant and unique information. See id.
(considering whether the target’s “records contain relevant and unique documents” and the
proportion of such records in his possession).
EEOC seeks emails from Mr. Aresco (in RFP No. 10) and Ms. Williams (in RFP No. 11)
in order to help elucidate each individual’s actual job duties to determine whether the two did, in
fact, perform substantially the same work. ECF No. 50 at 19. It seeks Mr. Nero’s emails in RFP
No. 24 for the same reason, as well as in order to show that he treated Mr. Aresco more favorably
than he did Ms. Williams in the terms of conditions of employment and access to advancement
opportunities. Id. at 19–20. There is no doubt that the email accounts at issue here will contain
relevant information, including details about day-to-day job duties of the relevant individuals.
However, EEOC has argued that each and every email in these accounts is relevant to a claim or
defense in this case. ECF No. 50 at 20; EEOC Letter Brief at 1. The argument is not well-taken,
and similar arguments have been rejected. See, e.g., Krause v. Nev. Mut. Ins. Co., No. 2:12-cv-
15
0342, 2014 WL 496936, at *6 (D. Nev. Feb 6, 2014) (“The email account will, unquestionably,
contain untold numbers of entirely irrelevant documents and information. . . . It is [ ] absurd to
believe that Plaintiff should be given unfettered access to every piece of information within or
attached to her email account.”); see also Elsayed v. Family Fare LLC, No. 1:18CV1045, 2019
WL 8586708, at *3 (M.D.N.C. Oct. 31, 2019) (in a discrimination case, stating that a request for
the defendant to produce all emails for a three-year period that referred to the plaintiff without
regard to the substance of the communications was overbroad and “constitute[d] a ‘blatant fishing
expedition[ ] essentially seeking all [communications] relating to Plaintiff rather than only those
having any apparent or possible nexus to the issues in this case’” (alterations in original) (quoting
Ge v. Dun & Bradstreet, Inc., No. 6:15CV1029, 2017 WL 10059004, at *4 (M.D. Fla. Jan. 4,
2017))); Borup v. CJS Sols. Grp., LLC, No. 18-cv-1647, 2019 WL 582112, at *4 (D. Minn. Feb.
13, 2019) (in an FLSA misclassification case, finding overbroad a request for production seeking
“all emails and other communications” by employees of the defendant to independent contractors
working for the defendant, noting that while “many such communications may be relevant to
show . . . similarity of job duties, many others may not”); Konecny v. BNSF R. Co., No. 13-cv-
2369, 2014 WL 2804034, at *3 (D. Kan. June 20, 2014) (rejecting document request for all emails
among three individuals who allegedly were involved in employment discrimination against the
plaintiff and therefore limiting request so it would more likely uncover relevant documents);
Osman-Dean v. Ill. State Police, No. 11 C 1935, 2011 WL 6338834, at *1 (N.D. Ill. Dec. 19, 2011)
(labeling a request in a gender discrimination case “obviously overbroad” that asked defendant to
produce “all emails for the past seven years . . . sent or received by eight individuals” that included
any of a list of 17 words or word roots). Indeed, EEOC has apparently “agreed that, interpreted
literally, the text of RFPs 10 and 11 would produce a lot of ‘junk’ that would be irrelevant to this
16
case.” 7 ECF No. 47-5 at 16 (GW summarizing the parties’ positions during a meet and confer in
October 2019); see also id. at 23. The same is certainly true of the broader request in RFP No. 24.
Nor is such discovery necessary. EEOC does not need to discover every email in the three email
accounts at issue in order to discern Ms. Williams’ and Mr. Aresco’s job duties—an endeavor
which, in this case, would seem more efficiently accomplished by deposition or the review of other
job-related documents. Cf. Ruggles v. WellPoint, Inc., 2010 WL 11570681, at *9 (N.D.N.Y. Dec.
28, 2010) (“A party does not need to discover every communication, note, or document relevant
as to each class member to discern their job duties . . . .”).
EEOC has thus weakened its position on this factor by insisting on such obviously
overbroad discovery because, as written, the RFPs are not designed to capture relevant, unique
information; rather, they are designed to capture great swaths of information without regard to
whether that information is likely relevant and unique. That is, although EEOC’s asserted reasons
for seeking emails from Mr. Aresco, Ms. Williams, and Mr. Nero are undoubtedly germane to this
case, its manner of doing so—through promulgation of overbroad requests for electronically-
stored information (“ESI”)—dilutes the importance of the discovery that would be gained from
these RFPs (if enforced as written). Especially in light of the fact that GW has never asserted that
it would refuse to produce emails from these three custodians—a position that would not, of
course, survive scrutiny—this factor does not weigh in EEOC’s favor.
6. The Burden or Expense of the Proposed Discovery
The bulk of the argument in this dispute has concerned this factor. To assist in its
assessment, the Court has required Defendant to establish the actual expense of complying with
7
Judge Kollar-Kotelly was also apparently concerned about the prevalence of irrelevant emails in these two accounts,
suggesting at the February 19, 2020 hearing that it would be unduly burdensome to require GW to “review everything
that they might have sent, including lunch plans, or anything else.” ECF No. 38 at 6.
17
the discovery requests, including representations as to the amounts charged by e-discovery vendors
to review the number of emails at issue her; the rate charged by Gibson Dunn counsel to GW for
work on this case (including on document/privilege review); and the realization rate on the charges
incurred in this case—that is, the percentage of charges billed that GW has paid. The goal of this
exercise has been to determine how much GW would actually pay to respond to the RFPs at issue.
EEOC contends that GW’s “estimates are unreasonable, unreliable, and extremely
inflated,” asserting that “it is undisputed that Defendant already has run some targeted searched to
come up with the 4,000 pages of emails it intends to rely on,” but has not informed that Court
“how many of all the emails at issue Defendant has already reviewed.” ECF No. 50 at 22–23. It
asks that “[b]efore any order finding undue burden is entered . . . Defendant should be ordered to
produce the report of search terms [it] used and how many items came back that [it] reviewed.”
Id. at 23. EEOC has not previously argued that GW’s estimates are inaccurate because certain
emails from these accounts have already been reviewed. No such suggestion appears in its
response to Defendant’s original cost estimate or in the transcript of the March 12, 2020 hearing
before the undersigned. 8 See generally ECF No. 42-1; Mar. 12 Tr. As the Court noted at the
hearing, this discovery dispute has been simmering for months; it is time for it to come to an end.
Mar. 12 Tr. at 86–87. The parties and the Court have spent enough—perhaps too much—time on
it. At the Court’s direction, GW has twice submitted estimates of the cost of responding to EEOC’s
discovery requests—exercises that have themselves imposed costs on GW. The Court will not
require GW to submit a third round of estimates. EEOC’s late-breaking proposal would merely
8
There was discussion at that hearing of GW producing to EEOC the search terms that GW had used to identify
relevant documents it intends to rely upon. Tr. at 99–100. GW was understandably leery of pursuing that compromise,
especially as EEOC continued to maintain that the use of search terms to identify relevant emails would be
inappropriate. Id. at 100–01. In any case, EEOC did not contend that GW’s use of those search terms to identify and
review emails at issue in these RFPs rendered their then-current cost estimate inaccurate.
18
cause further expense and delay; it is rejected. In sum, the Court finds that GW has established
that the estimates Gibson Dunn has provided—which total between $435,200 and $533,400—are
accurate reflections of the costs Defendant would incur and pay in order to review and produce
documents in response to the RFPs at issue (taking into account EEOC’s narrowing of RFP No.
24).
Nevertheless, EEOC challenges the necessity and cost of the procedures GW proposes to
ensure that attorney-client privileged or other protected material is filtered out of the production.
ECF No. 50 at 18. Again, GW’s cost estimates are based on document-by-document review by
attorneys to ensure that such protected material is not produced. EEOC believes those cost
estimates are unreasonable because cheaper procedures could be used to review and filter protected
material from the contents of the email accounts. Id. at 22–23. EEOC proposes a less rigorous
procedure by which Gibson Dunn or its e-discovery vendor would “use filtering and targeted
searches” (for example, searches for attorneys’ names and the names of law firms (ECF No. 42-1
at 3)) to segregate protected material; attorneys would then review those documents to confirm
that they contain protected information, redact such information, and create a privilege log. Id. at
18. Importantly, the remaining emails (which did not “hit” on any of the search terms) would be
produced to EEOC without further document-by-document review by GW to ensure they do not
contain protected material. Id. In the event that this less rigorous procedure were to result in the
production of protected material, EEOC would permit GW to use “the clawback provisions of Rule
502 [of the Federal Rules of Evidence]” to reclaim it. Id. EEOC estimates that using such a
process would cost “around $31,000.” Id. at 24. GW asserts that EEOC’s proposed method would
likely result both in privileged material being produced—GW has determined that the email
accounts at issue include potentially privileged material, for example, communications between
19
the Athletic Director’s office and GW’s General Counsel’s office (Mar. 12 Tr. at 63–64)—and in
non-privileged material being withheld. ECF No. 47 at 19. EEOC replies that, in light of Rule
502 and the protective order entered in this case, GW’s concerns that anything short of document-
by-document review presents an unacceptable risk that protected information will be disclosed are
overblown. ECF No. 50 at 18–19.
Some background will be helpful here. Prior to the enactment of Rule 502(b), the D.C.
Circuit had held that disclosure of privileged material, even if inadvertent, resulted in a waiver of
privilege not only as to the specific document disclosed, but also “to all other communications
relating to the same subject matter.” In re Sealed Case, 877 F.2d 976, 980–81 (D.C. Cir. 1989)
(quoting In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982)). “Rule 502(b), enacted on
September 19, 2008, [overrode that] long-standing strict construction of waiver” and “protects
from waiver a privileged document that has been disclosed inadvertently” (and in doing so,
safeguards against subject-matter waiver) as long as “the holder of the privilege or protection took
reasonable steps to prevent disclosure” and “the holder promptly took reasonable steps to rectify
the error.” Amobi v. D.C. Dep’t of Corr., 262 F.R.D. 45, 52 (D.D.C. 2009) (citing Fed. R. Evid.
502(b)). The change was apparently motivated by “the increased prominence of electronic
discovery that may involve the production of thousands of pieces of electronically stored
information,” which “led fortunes to be spent analyzing every piece lest the inadvertent production
of one be deemed a waiver . . . as to all others that relate to the same subject matter.” Id. at 52 n.1.
Moreover, Rule 502(d) now allows a court to enter an order “that the privilege or protection is not
waived by disclosure connected with the litigation pending before the court—in which event the
disclosure is also not a waiver in any other federal or state proceeding.” Fed. R. Evid. 502(d).
That is, Rule 502(d) can be read to protect a party from subject-matter waiver without regard to
20
whether a court finds that the disclosure was inadvertent pursuant to Rule 502(b). See, e.g., United
States v. Caroleo, No. 17-cr-177, 2019 WL 5869690, at *1 (E.D.N.Y. Nov. 11, 2019) (“Even if
the disclosure is not ‘inadvertent’ under Rule 502(b), . . . a court may nevertheless ‘order that
privilege or protection is not waived by disclosure connected with the litigation pending before the
court.’” (quoting Fed. R. Evid. 502(d))); Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil &
Gas Corp., No. 4:08-cv-684, 2009 WL 464989, at *4 (N.D. Tex. Feb. 23, 2009) (finding that Rule
502(d) is not limited to inadvertent disclosures); see also Sedona Conference Journal, The Sedona
Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 95, 104 (2016)
[hereinafter, Protection of Privileged ESI] (“[A] federal court could enter a Rule 502(d) order to
prevent waiver without regard to the reasonableness of the procedures use to identify privileged
documents.”); but cf., e.g., Smith v. Best Buy Stores, L.P., No. 4:06-cv-0296, 2017 WL 3484158,
at *3–4 (D. Idaho Aug. 14, 2017) (holding that Rule 502(d) does not protect intentional disclosures
from effecting a waiver); Potomac Elec. Power Co. & Subsidiaries v. United States, 107 Fed. Cl.
725, 731–32 (2012) (same).
EEOC contends that Rule 502(d) was drafted for cases just like this one, “so that document-
by-document pre-production privilege review does not have to be performed, and will not be cost
prohibitive, in large-volume e-discovery situations” and urges the Court to enter a Rule 502(d)
order even if GW has not agreed to entry of such an order. ECF No. 50 at 23, 29. In fact, no order
pursuant to Rule 502(d) has been entered in this case. However, EEOC argues that the Court could
enter such an order and, indeed, that the parties contemplated that eventuality, pointing to the
parties’ protective order. That negotiated protective order includes a provision governing
inadvertent production of privileged or otherwise protected material that basically implements
procedures under Rule 502(b) when a party discovers that it has inadvertently disclosed privileged
21
information. ECF No. 33, ¶ 10.1. Thereafter, the order clarifies that the provision “is not intended
to modify whatever procedure may be established in an e-discovery order that provides for
production without privilege review.” Id., ¶ 10.2.
Although EEOC’s position is somewhat muddled, the Court understands it to raise two
related possibilities, each based on the notion that entry of a Rule 502(d) order would allow GW
to lower its costs by permitting it to produce documents without robust privilege review: (1) the
Court could enter an order under Rule 502(d) and then require GW to utilize the cheaper review
protocol EEOC prefers, which would substantially lower the cost of complying with the RFPs at
issue and therefore affect the proportionality analysis such that GW should be required to respond
to them as written (but with EEOC’s concession as to RFP No. 24); or (2) the Court could enter
an order under Rule 502(d) and then allow GW to utilize whatever review protocol it prefers, but
the Court should consider only the lower cost of the review protocol the EEOC prefers in its
proportionality review, again affecting the proportionality analysis in EEOC’s favor. Either of
these proposals would, in EEOC’s estimation, result in the Court ordering GW to produce the
entirety of the email accounts of Mr. Aresco, Ms. Williams, and Mr. Nero for the identified time
periods and to bear the cost of such production itself.
At the outset, it is worth noting that the text of Rule 502(d) says nothing about the necessity
or reasonableness of any particular privilege-review procedure. Rather, it merely allows a court
to enter an order that attorney-client privilege or work product protection will not be waived by
disclosure of protected information during discovery. The advisory committee’s note, of course,
suggests that the provision was motivated by a desire to allow litigants to “reduce the costs of pre-
production review for privilege and work product.” Fed. R. Evid. 502(d), advisory committee’s
note. But “[t]he Advisory Committee Note is not the law, the rule is.” Bear Rep. Brewing Co. v.
22
Cent. City Brewing Co., 275 F.R.D. 43, 48 (D. Mass. 2011) (quoting United States v. Carey, 120
F.3d 509, 512 (4th Cir. 1987)); see also Edwin M. Buffmire, Enter the Order, Protect the
Privilege: Considerations for Courts Entering Protective Orders Under Federal Rule of Evidence
502(d), 81 Fordham L. Rev. 1621, 1633 (2013) [hereinafter, Enter the Order] (“Rule 502(d) does
not mandate a reduced privilege review and the consequent cost-savings . . . .”). If the drafters had
wanted to encourage courts to prohibit a party from engaging in document-by-document privilege
review without that party’s consent, they could have said so more clearly.
In any case, the first proposal—that the Court enter a Rule 502(d) order and then require
GW to use EEOC’s preferred privilege-review protocol—is, for the undersigned, a non-starter. To
be sure, some courts have entered orders under Rule 502(d) and then relied on those orders to
dictate to a party its privilege-review protocol. For example, in Adair v. EQT Production Co., the
district court overruled objections to a magistrate judge’s order and required the defendant to
produce documents using search terms to identify potentially relevant documents and attorney’s
names to filter out potentially privileged documents, relying on a “Clawback Order” pursuant to
Rule 502(d). Adair, Nos. 1:10CV0037, 1:10CV0041, 2012 WL 2526982, at *2–3 (W.D. Va. June
29, 2012). The court reasoned that the order did not require the defendant to produce privileged
documents, but merely recognized that “in the world of ESI, new perspectives and approaches are
needed to complete discovery in an efficient and reasonable manner.” Id. at 4. The defendant’s
concern that “privileged or nonrelevant documents [might] slip through the cracks and be turned
over to the other side” was discounted by the court because “inadvertent production can occur and
does occur whether the documents are searched and reviewed electronically or by human eyes”
and the defendant had not “shown that the use of electronic searching would substantially increase
the number of inadvertently produced privileged documents.” Id.Similarly, in Fairholme Funds,
23
Inc. v. United States, the Court of Federal Claims determined that it had the authority to order the
government to use a “quick peek procedure” 9 under Rule 502(d) without its consent. 134 Fed. Cl.
680, 687–88 (Fed. Cl. 2017). That court focused primarily on the efficiency of the process,
contending that if it denied the plaintiffs’ request for use of the procedure, they “would file [a]
motion seeking the court’s in camera review of all of the remaining 1,500 documents,” which, in
view of “the court’s heavy caseload and limited resources,” was not an “attractive option.” Id. at
678; see also id. at 688 (“The court’s sole purpose in utilizing the procedure is to bring
jurisdictional discovery to an end so that the case may move forward.”).
Both of those cases are distinguishable from this one. In Adair, for example, the
defendant—the producing party—had previously proposed the very process ordered by the court.
2012 WL 2526982, at *4. Moreover, the court found it “reasonable to assume that, knowing that
costs of review and production [would] not be shifted to the plaintiffs, [the defendant] would not
want to pay such costs and would prefer to rely on the production process” ordered by the court.
Id. at *5. That is not a reasonable assumption here, where (1) GW has not argued that it is unable
to pay and (2) counsel for GW repeatedly asserted that she would not advise a client to use search
terms rather than document-by-document review to protect privileged material and that she had
never performed privilege review in that manner. Mar. 12 Tr. at 33, 57, 67–68, 71. In Fairholme
Funds, the court explicitly disavowed that its use of the quick peek procedure was “motivated by
a need to (1) protect inadvertently disclosed materials [or] (2) address the high cost of discovery
in cases involving large quantities of ESI”; instead, it was rather merely an expedient way to
9
The “quick peek” procedure, also known as “make available production,” allows “the production of information
without any privilege review, subject to an assurance that privileged documents produced through such a production
will be returned without a later claim of waiver.” Sedona Conference Journal, The Sedona Conference Commentary
on Protection of Privileged ESI, 17 Sedona Conf. J. 95, 135 (2016).
24
complete jurisdictional discovery. 134 Fed. Cl. at 688. Neither party has expressed that
expediency is a motivating factor here.
More significant than the factual distinctions that can be made, however, are the courts and
commentators—including the Sedona Conference, which EEOC recognizes as an authority on
“preserving and producing ESI” (ECF No. 50 at 26) 10—that have disapproved of practices,like
those discussed above,that are likely to have the effect of compelling production of protected
material. It is well-established that materials protected by privileges such as the attorney-client
privilege “must be protected against compelled disclosure.” Upjohn Co. v. United States, 449 U.S.
383, 395 (1981); see also In re Dow Corning Corp., 261 F.3d 280, 284 (2d Cir. 2001) (per curiam)
(“[C]ompelled disclosure of privileged attorney-client communications, absent waiver or an
applicable exception, is contrary to well established precedent.”). Thus, for example, in In re
Sealed Case (Medical Records), the D.C. Circuit vacated a district court’s order requiring the
production of records potentially protected by the psychotherapist privilege—a privilege that
“[t]he Supreme Court has determined . . . is important enough to rank with the attorney-client
privilege as one of only a handful of privileges cognizable under Federal Rule of Evidence 501”—
without their being screened, holding that “[b]ecause that order could compel the disclosure of
material subject to a federal privilege, it constitute[d] an abuse of the district court’s discretion.”
381 F.3d 1205, 1210, 1214 (D.C. Cir. 2004).
To be sure, In re Sealed Case predates the enactment of Federal Rule of Evidence 502.
More recently, however, the court in Winfield v. City of New York, has cogently explained why it
is inappropriate for a court to “mandate disclosure of privileged information pursuant to Federal
10
The Sedona Conference is a “nonprofit legal policy research and education organization,” which has a working
group comprising judges, attorneys, and electronic discovery experts “dedicated to resolving electronic discovery
document production issues.” Aguilar v. ICE, 255 F.R.D. 350, 355 (S.D.N.Y. 2008). It has published guidance
concerning such issues that federal courts have found instructive. See, e.g., id.
25
Rule of Evidence 502(d).” Winfield, No. 15-cv-5236, 2018 WL 2148435, at *5 (S.D.N.Y. May
10, 2018). There, the plaintiffs sought an order from the court requiring the defendant to allow
them a “quick peek” at more than 3,000 documents that had been designated as privileged. Id. at
*2. The court refused, explicitly disagreeing with the reasoning of Fairholme Funds “for a number
of reasons.” Id. at *5 First, while it recognized that a trial court “has broad discretion to fashion
discovery orders, [a court] nevertheless must do so in accordance with the Federal Rules of Civil
Procedure,” including Rule 26(b)(1), which “limits the scope of discoverable information to
nonprivileged information.” Id. at *5. Thus, information protected by a privilege “is
presumptively not discoverable absent a waiver, voluntary disclosure, or other legally recognized
exception.” Id. Second, the court noted that “the Federal Rules of Evidence do not abrogate
common law privileges.” Id. at *6. Indeed, Rule 502(d) “authorizes a court to issue an order
protecting privilege,” rather than “creat[ing] an exception to the law of privilege or authoriz[ing]
a court to compel disclosure of privileged information in the absence of a legally recognized
exception.” Id. Third, the Rules Enabling Act prohibits rules of procedure or of evidence “from
abridging, enlarging, or modifying any substantive right,” including privilege rights. Id. (citing 28
U.S.C. § 2702). That is, a court “is precluded from interpreting the Federal Rules of Civil
Procedure and the Federal Rules of Evidence in a manner that infringes on” privilege rights. Id.
It is clear, then, that Rule 502(d) does not supersede controlling case law forbidding a court from
compelling disclosure of protected information “absent waiver or other applicable exception.” Id.
at *8; see also Enter the Order, 81 Fordham L. Rev. at 1636 (“When a court orders the disclosure
of information without review, it effects a substantive change in privilege law because the party
no longer has that right to confidentiality over those documents.”).
26
Were the Court to order GW to produce the requested emails pursuant to EEOC’s proposed
procedure, it would likely have the effect of requiring production of privileged material. The
proposed search terms—attorney’s names and law firm’s names (suggested by EEOC (ECF No.
42-1 at 3)) and words or phrases such as “attorney-client,” “work product,” “confidential, and
“privileged” (suggested by the Court (Mar. 12 Tr. at 68))—are rather blunt instruments to employ
for a procedure that could use a more delicate touch. For example, communications among non-
attorneys can be entitled to protection if they concern matters in which the parties intend to seek
legal advice or reflect legal advice provided by an attorney, see, e.g., Mischler v. Novagraaf Grp.
BV, No. 18-cv-2002 (TJK/GMH), 2019 WL 6135447, at *4 (D.D.C. Nov. 19, 2019); Lazare
Kaplan Int’l, Inc. v. KBC Bank, N.V., 11-cv-9490, 2016 WL 415274, at *3 (S.D.N.Y. July 22,
2016) (“[T]he attorney-client privilege extends to communications of legal advice obtained from
lawyers among [ ] employees who were responsible for obtaining or acting on that advice . . . .”),
and there is no requirement “that a document be labeled as privileged in order for it to be subject
to . . . privilege, Lifewise Master Funding v. Telebank, 206 F.R.D. 298, 301 (D. Utah 2002).
Moreover, courts have recognized that it is risky for a litigant to rely exclusively on keyword
searches precisely because of the potential that privileged material will be produced. See, e.g.,
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 256–57 (D. Md. 2008) (“[W]hile it is
universally acknowledged that keyword searches are useful tools for search and retrieval of ESI,
all keyword searches are not created equal; and there is a growing body of literature that highlights
the risks associated with conducting an unreliable or inadequate keyword search or relying
exclusively on such searches for privilege review.”). Under the circumstances of this case, such
an order would also be an abuse of discretion under the D.C. Circuit’s decision in In re Sealed
27
Case. 11 381 F.3d at 1214 (finding that an order requiring production of potentially protected
material without screening was an abuse of discretion because it “could compel the disclosure of
material subject to a federal privilege”).
Moreover, courts are “not normally in the business of dictating to parties the process they
should use when responding to discovery,” including “the manner in which [they] should review
documents . . . for privilege” and “whether [that] document review should be done by humans or
with the assistance of computers.” Hyles v. New York City, No. 10 Civ. 3119, 2016 WL 4077114,
at *3 (S.D.N.Y. Aug. 1, 2016) (quoting Dynamo Holdings Ltd. P’ship v. Comm’r of Internal
Revenue, 143 T.C. 9, 2014 WL 4636526, at *3 (T.C. 2014)); see also In re Viagra (Sildenafil
Citrate) Prods. Liability Litig., No. 16-md-2691, 2016 WL 7336411 (N.D. Cal. Oct. 14, 2016)
(finding that the court did not have the authority to order a party to use a particular method of
searching for and reviewing ESI). Indeed, The Sedona Principles clearly state that “[r]esponding
parties are best situated to evaluate the procedures, methodologies, and technologies appropriate
for preserving and producing their own electronically stored information.” The Sedona
Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations &
Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 118 (2018)
[hereinafter, The Sedona Principles]. As The Sedona Principles recognize, “a responding party,
not the court or requesting party, is generally best suited to determine and implement appropriate
procedures, methodologies, and technologies” to “identify, preserve, collect, process, analyze,
review, and produce relevant and discoverable ESI,” and “[n]o Federal Rule ‘has given judges the
11
The Court neither holds nor implies that the use of keywords or search terms is always an inappropriate or
insufficient method for conducting privilege review. Such an approach might well be suitable in a case where, for
example, there is a showing that the universe of documents to be reviewed is unlikely to contain a significant number
of potentially privileged communications, there is a more robust record as to the crafting and administration of the
searches, or the keyword searches will be used in conjunction with other technologies. But under the circumstances
of this case, the Court does not find that the use of the proposed search terms alone would be sufficiently protective
of GW’s privileged material.
28
authority . . . to dictate’” to parties how to search their documents. The Sedona Principles, 19
Sedona Conf. J. at 117–18 & n.92 (ellipses in original) (quoting Hon. James C. Francis IV, Judicial
Modesty: The Case for Jurist Restraint in the New Electronic Age, Law Tech. News (Feb. 2013)).
There are practical reasons, too, that a litigant should not be forced to produce material that
has not gone through a thorough privilege review. The attorney-client privilege exists for the
benefit of the client, to protect its confidences. See, e.g., Moody v. IRS, 654 F.2d 795, 801 (D.C.
Cir. 1981). While a protective order coupled with a claw-back order may provide significant
protection from waiver, it is nevertheless “common sense observation” that “[i]f an adverse party
is provide access to privileged material, then a ‘pertinent aspect of confidentiality will be lost.’”
Dow Corning, 261 F.3d at 284 (quoting Chase Manhattan Bank, N.A. v. Turner & Newall, PLC,
964 F.2d 159, 165 (2d Cir. 1992)); see also The Sedona Conference, Protection of Privileged ESI,
17 Sedona Conf. J. at 136 (“[E]ven though a Rule 502(d) order can require return of [ ] privileged
documents and ensure there is no waiver, once it is produced, the opposing party knows its
contents.”). For these reasons, the Court finds that it is not appropriate to order GW to use EEOC’s
preferred method of privilege review, notwithstanding that it would significantly reduce the cost
of production of the material at issue.
Nor is it appropriate for the Court to ignore the fees GW will incur in producing the
requested information when balancing whether the cost of such production outweighs its likely
benefit. As noted, GW has established that its estimated cost to comply with RFP Nos. 10, 11, and
24 using its more rigorous filtering methodology is between $435,200 and $533,400. Counsel for
GW has also asserted that document-by-document privilege review is common practice at Gibson
Dunn and that she would not advise a client to rely on the procedure urged by EEOC. Mar. 12 Tr.
at 57, 67–68, 71, 73. Indeed, some courts have stated that “[t]he law demands that a legitimate
29
claim of privilege can only be made after a document by document examination.” Urban 8 Fox
Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 415 F. Supp. 3d 827, 829 (N.D. Ill.
2019); see also Hilson v. GEICO Gen. Ins. Co., No. 8:11-cv-13, 2012 WL 3128953, at *1 (M.D.
Fla. Aug. 1, 2012) (“Ordinarily, review [for attorney-client privilege] . . . requires a document-by-
document study . . . .”). It is not necessary to go that far here. It is enough to find that the costs
for the procedure that GW proposes are within the realm of reasonableness. Here, GW’s cost
estimates are supported by attestations that the hourly rates and filtering procedures on which the
estimates are based are comparable to what GW has actually paid in the past. 12 ECF No. 47-7 at
3. There is considerable precedent holding that “negotiation and payment of fees by sophisticated
clients are solid evidence of their reasonableness.” Bleecker Charles Co. v. 350 Bleecker St.
Apartment Corp., 212 F. Supp. 2d 226, 230 (S.D.N.Y. 2002); see also Cobell v. Jewell, 234 F.
Supp. 3d 126, 167–68 (D.D.C. 2017) (“There is no better indication of what the market will bear
than what the lawyer in fact charges for his services and what his clients pay.” (alteration omitted)
(quoting Cobell v. Norton, 231 F. Supp. 2d 295, 302–03 (D.D.C. 2002)), aff’d sub nom. Cobell v.
Zinke, 741 F. App’x 811 (D.C. Cir. 2018)). That tends to be true even if there is a cheaper
alternative. Cf. Bleecker. 212 F. Supp. 2d at 231 (“Certainly, the [plaintiff] could have found
cheaper lawyers, but it was not required to do so. The [plaintiff] chose these lawyers, agreed to be
responsible for their fees, and paid them . . . .”). Commentary, too, suggests that a court should
not take into account the potential cost savings of a Rule 502(d) order when analyzing the burden
of production under Rule 26. Enter the Order, 81 Fordham L. Rev. at 1635 (recommending that,
12
If anything, the estimates are cheaper than Gibson Dunn’s past practice—even in this case—of tasking its associates
with first-level privilege review, instead of incorporating the work of significantly less expensive contract attorneys
to conduct that initial review as Gibson Dunn proposes here. Id. at 3, 6; Mar. 12 Tr. at 42, 46. If the entire review
were performed by Gibson Dunn attorneys (as some clients require) the cost of review would be “significantly higher.”
Mar. 12 Tr. at 42–43, 46.
30
although a court may “point out that less expensive, often equally thorough, electronic searches
are available,” it should not allow the “presence of the 502(d) order” to affect its analysis of “the
burden and expense of producing information”). Here, as noted above, there has been no showing
that the lower-cost alternative proposed by EEOC will be sufficiently protective of GW’s
privileged material.
The Court acknowledges that failure to weigh less expensive alternatives to document-by-
document privilege review could create an incentive for litigants to overstate the cost and the
necessity of such review in an effort to avoid responding to legitimate discovery requests. That is
a concern to be taken up in a different case. Here, the Court has required Defendant to establish
the actual rates that it has paid for work in this case. Defendant has not suggested that it cannot or
will not pay the costs of production should the Court order it to respond to the RFPs as written.
Counsel has also represented that document-by-document privilege review is the norm for the legal
work it performs for its clients and that it has engaged in such review for GW in this case. Mar.
12 Tr. at 71; ECF No. 47-7 at 3. And GW is not trying to avoid responding to the discovery
requests altogether; it is, rather seeking to reach a compromise that is fair and reasonable.
Therefore, the Court will use GW’s cost estimates based on a document-by-document filter review
in balancing the burden against the likely benefit.
7. Balance of Burden Against Likely Benefit and Remedy
In this case, the Court is faced with the following situation. Defendant has shown that
complying with the three RFPs at issue would cost hundreds of thousands of dollars—around
$484,200—slightly more, than EEOC’s best-case scenario recovery in this case of $480,000. The
Court finds that cost to be disproportionate to the benefit that could be derived from a complete
response to the RFPs. To be sure, the issues at stake in this litigation are undeniably important,
31
but EEOC’s overbroad RFPs are not the only means available for it to discover the information it
needs to advance its claims. Notably, even counsel for EEOC admitted at the hearing that it was
unlikely the agency would authorize hundreds of thousands of dollars if it was ordered to share
with GW the cost of complying with the RFPs as written. Mar. 12 Tr. at 32. Engaging in the case-
by-case analysis that is required when analyzing the proportionality of requested discovery, see
Oxbow Carbon, 322 F.R.D. at 6, it is clear that the burden imposed on GW to comply with these
discovery requests as written outweighs the likely benefit. EEOC’s motion to compel a full
response to RFP Nos. 10, 11, and 24 will be denied.
As for the path forward, the Court could simply deny the motion to compel as to these
RFPs as written and leave it to the parties to work out a compromise. But the history of the parties’
negotiations suggests that would result in a further impasse, extending this dispute into the
foreseeable future. For that reason, the Court crafts a resolution that incorporates the parties’
concessions and strikes a balance, providing EEOC with a plethora of relevant emails from the
accounts while allowing GW to keep its costs down. Of course, EEOC may, at its own election,
pay for GW to perform searches for relevant material from these three accounts beyond that
required below. Barring that development, GW shall produce the following documents at its own
expense:
(1) In response to RFP No. 10, all non-privileged emails from Mr. Aresco’s
email account that include Mr. Nero or Ms. Williams as a sender or
recipient, for the time period identified in the RFP. In compliance with its
representation at the March 12, 2020 hearing, GW shall not withhold emails
based on relevance. Mar. 12 Tr. at 82–83. GW shall redact information
protected from disclosure by FERPA. 13
(2) In response to RFP No. 11, all non-privileged emails from Ms. Williams’
email account that include Mr. Nero or Mr. Aresco as a sender or recipient,
13
Because this resolution anticipates that GW will engage in document-by-document privilege review, it is
unnecessary to address the parties’ arguments directed to protected information under FERPA. GW will be able to
review and redact that information during its privilege review.
32
for the time period identified in the RFP. In compliance with its
representation at the March 12, 2020 hearing, GW shall not withhold emails
based on relevance. Mar. 12 Tr. at 82–83. GW shall redact information
protected from disclosure by FERPA.
(3) In response to RFP No. 24, all non-privileged emails from Mr. Nero’s email
account between Mr. Nero and third-parties that include a reference to Mr.
Aresco or Ms. Williams, for the period between September 1, 2014 (when
Ms. Williams began working as Mr. Nero’s Executive Assistant), through
March 31, 2017 (when Mr. Aresco left his position as Mr. Nero’s Special
Assistant). In addition, GW shall produce all non-privileged emails in this
account that are either to or from Ms. Williams or Mr. Aresco and are not
duplicative of those produced as directed above in (1) and (2). In
compliance with its representation at the March 12, 2020 hearing, GW shall
not withhold emails based on relevance. Mar. 12 Tr. at 82–83. GW shall
redact information protected from disclosure by FERPA.
(4) In addition to those emails, a random sampling of ten percent of the
remaining non-privileged emails from each of those three email accounts.
GW shall not withhold emails based on relevance. Mar. 12 Tr. at 82–83.
GW shall redact information protected from disclosure by FERPA.
Two of these directions require further explanation. First, with respect to the random
sample, GW has previously offered to provide EEOC a random sampling of ten percent of the
emails in these accounts, but as an alternative to, rather than in conjunction with, its offer to
produce emails between Mr. Aresco and Mr. Nero, between Ms. Williams and Mr. Nero, and
between Mr. Nero and third parties if they mention Mr. Aresco or Ms. Williams. Tr. at 94, 101–
02. The Court orders production of the random sample to provide EEOC with emails that may
include additional relevant material about its claims—such as information reflecting Ms.
Williams’ and Mr. Aresco’s job duties or Mr. Nero’s alleged discrimination—that is not included
in the other emails GW will produce.
Second, EEOC has requested that, in response to RFP No. 24, GW should also use search
terms to “conduct[ ] targeted searches” of Mr. Nero’s email account for the period between April
2011 (when Mr. Nero began his employment in GW’s Athletics Department) and September 1,
33
2014 and between March 31, 2017, and June 2018 (when Mr. Nero left the Athletics Department)
(ECF No. 50 at 9). That request is denied for two independent reasons. To begin, relevance:
documents from those periods would not be relevant to the job duties that Mr. Aresco and Ms.
Williams performed, because neither Mr. Aresco nor Ms. Williams was performing the duties of
their relevant positions in the Athletics Department during those periods. For the same reason,
they are unlikely to be relevant to EEOC’s argument that Mr. Nero “groom[ed] [Mr] Aresco for
advancement to [Ms.] Williams’ detriment.” EEOC Letter Brief at 2 & Exh. F. Nor has EEOC
explained why it believes that emails from those periods would be relevant to Mr. Nero’s alleged
“bias in favor of male employees.” Id. The resolution above provides EEOC emails from the most
relevant period; that is sufficient. Second, as noted, the parties have waged this discovery dispute
for months and it is time to resolve it. EEOC’s proposal, which includes no suggested search
terms—would only further delay that resolution.
B. RFP No. 20
This RFP seeks documents relating to “any report or complaint . . . that Patrick Nero
subjected any employee or student of Defendant to any discrimination, harassment, retaliation,
abuse, mistreatment, or inappropriate conduct.” ECF No. 47-5 at 10. GW contends that, as this is
a case alleging gender and pay discrimination against GW employee Ms. Williams, the request is
overbroad and seeks irrelevant information insofar as it asks for complaints about any kind of
discrimination, harassment, or inappropriate conduct, for the entire period of Mr. Nero’s
employment with GW. ECF No. 47 at 27. GW has offered to produce complaints made by Ms.
Williams against Mr. Nero (id. at 28; ECF No. 47-5 at 11), but stated that it would consider
producing “gender-based pay equity complaints brought against [Mr.] Nero [ ] from anyone in the
34
[A]thletic [D]epartment” (Mar. 12 Tr. at 108–09). Neither party’s position reflects a fair
interpretation of the requirements of the law in this area.
Generally, a plaintiff in an intentional discrimination case can discover evidence of other
discrimination claims of the same type as that the plaintiff alleges. The court in Sorrell v. District
of Columbia, explained:
[O]nly discrimination of the same character and type as that alleged is probative.
To establish that a prior discriminatory act is probative of the intention or motive
of the defendant, there must be some reason to believe that his motivation or
intention in the acts in question was similar to his motive or intention on the prior
occasion. But, there is nothing in human experience which suggests that a person
who is bigoted as to race is equally likely to refuse to accommodate a disabled
person unless one wants to say that certain folks are “like that” and always act a
certain way as to people who are different from them. But to say that is to draw the
very inference the law never permits a finder of fact to draw.
252 F.R.D. 37, 40 (D.D.C. 2008) (quoting White v. U.S. Catholic Conference, No. Civ.A. 97-
1253TAF/JMF, 1998 WL 429842, at *5 (D.D.C. May 22, 1998)); see also Breiterman v. U.S.
Capitol Police, 324 F.R.D. 24, 32–33 (D.D.C. 2018) (finding an interrogatory in a gender
discrimination case overbroad in part because it would require the defendant to disclose
information about an employee disciplined “for engaging in types of discrimination that [were]
not at issue in [the] complaint”); Johnson v. Jung, No. 02 C 5221, 2007 WL 1752608, at *1 (N.D.
Ill. June 14, 2007) (noting that discovery requests “seeking disclosure of every conceivable type
of discrimination ever made against a defendant are generally deemed overly broad and
impermissible”). Complaints of discrimination of a type similar to the charged discrimination
against the alleged perpetrator of the discrimination are relevant even if made by individuals other
than the plaintiff (or, as in this case, the charging party) because “an individual plaintiff may
introduce evidence of systematic or general discrimination when developing her individual
discrimination claims.” Breiterman, 324 F.R.D. at 33 (quoting Marcus v. Geithner, 813 F. Supp.
35
2d 11, 20 (D.D.C. 2011)). Thus, in a discrimination case, “discovery ‘should be reasonably related
to the circumstances involved in the alleged discrimination,’” as well as “to a time frame involving
the alleged discriminatory conduct and the individuals who are allegedly involved in that conduct.”
Pleasants v. Allbaugh, 208 F.R.D. 7, 9 (D.D.C. 2002) (quoting Hardrick v. Legal Servs. Corp., 96
F.R.D. 617, 618–19 (D.D.C. 1983)); see also Pleasants, 208 F.R.D. at 14 (deciding, in a racial
discrimination case, that “the proper scope of discovery seeking other complaints of discrimination
against defendant must be limited in time [and] type of action complained of or type of
discrimination alleged” and therefore limiting interrogatories “to complaints based on race and in
the particular division(s) where [the] plaintiff worked”). As discussed below, these principles
establish that RFP No. 20, as written, is vastly overbroad and GW’s proposed compromise is
unjustifiably narrow.
1. Time Frame
RFP No. 24 has no explicit temporal limitation. Its de facto limitation is the over seven
years—April 2011 to June 2018—during which GW employed Mr. Nero. Mar. 12 Tr. at 8.
“[D]iscovery of other discriminatory acts must be related in time in order to establish the inference
of similar motivation.” Glenn v. Williams, 209 F.R.D. 279, 282 (D.D.C. 2002). A period of ten
years or over has generally been held to be too long. See, e.g., id. (finding ten years “an inordinate
length of time” in a case alleging a pattern of discrimination); see also Willingham v. Ashcroft, 226
F.R.D. 57, 61–62 (D.D.C. 2005) (narrowing a request from a period of fifteen years to
approximately four years). But courts have allowed discovery of other discrimination complaints
for “a reasonable number of years both prior to and following” the period at issue in the case. See,
e.g., Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 655 (D. Kan. 2004). Here, the period of
alleged discrimination at issue, interpreted generously, is the approximately two-and-a-half years
36
between September 2014, when Ms. Williams began working in the Athletics Department, and
March 2017, when Mr. Aresco left his job there. Moreover, it is unlikely that there will be
complaints about Mr. Nero for any significant period of time after he left the employ of GW in
June 2018—and, indeed, EEOC has clarified that it does not seek complaints that post-date “Mr.
Nero’s tenure.” ECF No. 50 at 44.
In this case, a period of five years is reasonable. See, e.g., Sanchez v. City of Fort Wayne,
No. 18-cv-0397, 2019 WL 6696295, at *3 (N.D. Ind. Dec. 9, 2019) (noting that courts have found
“five-year discovery periods reasonable”); cf. Mitchell v. Nat’l R.R. Passenger Corp., 208 F.R.D.
455, 457, 460 (D.D.C. 2002) (allowing discovery into other discrimination complaints for a period
of four years prior to the plaintiff’s termination). Therefore, RFP No. 20 is limited to the time
period between June 2013—which is just over one year before Ms. Williams joined the Athletics
Department—and June 2018—which is both when Mr. Nero left the Athletics Department and just
over one year after Mr. Aresco left that department.
2. Types of Complaints
EEOC’s claim here is that GW, through Mr. Nero, discriminated against Ms. Williams on
the basis of her gender. That discrimination was allegedly accomplished not only through pay
inequity but also through other unequal treatment in the workplace. ECF No. 1, ¶¶ 17, 20–21, 24,
29, 32, 38, 421–42. There are no claims of discrimination on any ground other than gender—there
is no claim, for example, of discrimination based on race or age or disability. Therefore, the
universe of potentially relevant complaints is narrowed, at the outset, to complaints relating to
gender discrimination.
GW argues that this RFP should be further limited to either (1) complaints made by Ms.
Williams against Mr. Nero or (2) “complaints of other gender-pay discrimination claims” against
37
Mr. Nero. ECF NO. 47 at 28–29. That proposal appears to be based on a misreading of the
complaint and a crabbed interpretation of the case law. First, as noted above, EEOC claims more
than mere pay inequity. It also alleges that, for example, Mr. Nero treated Mr. Aresco more
favorably than Ms. Williams by “enhancing [Mr.] Aresco’s opportunities while minimizing” those
of Ms. Williams as part of a pattern of providing preferential treatment to males. ECF No. 1, ¶
20–21, 38. Second, as the cases cited above establish, courts routinely allow discovery into other
complaints of the same category of discrimination that a plaintiff has alleged. See, e.g., Sorrell,
252 F.R.D. at 40 (“[T]he sexual harassment of others, if shown to have occurred, is relevant and
probative of [the alleged harasser's] general attitude of disrespect toward his female employees
. . . .” (second alteration in original) (quoting Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir.
1995)); Pleasants, 208 F.R.D. at 15 (in case alleging discrimination based on race, allowing
discovery of “complaints of the same type, i.e., race discrimination” in the office where the
plaintiff worked). Moreover, “courts have recognized that . . . evidence of one type of
discrimination may be relevant to a claim for another type of discrimination if there is a sufficient
nexus between the two types.” Sidari v. Orleans Cty., No. 95-CV-7250, 2000 WL 33407343, at
*4 (W.D.N.Y. Oct. 3, 2000)). For example, as the Ninth Circuit has explained:
[S]exual harassment may be symptomatic of gender-based hostility, the employer
or supervisor using sexual harassment primarily to subordinate women, to remind
them of their lower status in the workplace, and to demean them. In this latter
circumstance, the “sexual” element of the harassment is only secondary. Because
hostility against women underlies decisions to discharge or to refuse to hire women
because of their gender, evidence of sexual harassment often will be relevant to
claims of gender-based employment discrimination.
E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 897–98 (9th Cir. 1994) (internal citation omitted); see
also, e.g., Rivera v. Baccarat, Inc., No. 95 Civ. 9478, 1997 WL 7778877, at *2 (S.D.N.Y. Dec.
15, 1997) (noting that, in Famer Brothers, the Ninth Circuit admitted sexual harassment evidence
38
in a case of gender discrimination because a nexus existed between the two types of
discrimination). At least one case has allowed a plaintiff even broader discovery. In Kennicott v.
Sandia Corp., a case alleging gender discrimination that was “most prominently manifested in pay,
promotions, and performance evaluations,” the court allowed discovery into complaints by female
employees of “pregnancy discrimination, sexual harassment, gender-based hostile work environ-
ment, and retaliation for making [those] categories of complaints.” 327 F.R.D. 454, 471–72
(D.N.M. 2018).
Here, EEOC has not explained why the net should be cast as wide as it was in Kennicott,
and, indeed, the Court is not convinced that, as a general matter, there is a sufficient nexus between
claims of disparate treatment in pay, promotions, and employment opportunities and claims of
retaliation against those who filed gender discrimination claims. Rather, EEOC asks that if there
is a constraint on the subject matter of RFP No. 20, GW should “at least” disclose “gender cases,
gender discrimination cases, sexual harassment cases, and claims of inappropriate sexual conduct.”
ECF No. 50 at 46. The Court admits to being stumped as to what EEOC can mean by “gender
cases,” as opposed to “gender discrimination cases” and “sexual harassment cases.” The term
“gender cases” appears to have been used at times as a shorthand to describe litigation addressing
gender classifications under the Equal Protection Clause. See, e.g., City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 472 n.24 (1985) (Marshall, J., concurring in part); Lamprecht v. FCC,
958 F.2d 382, 406–408 (D.C. Cir. 1992) (Mikva, C.J., dissenting). Such classifications are not at
issue here. The phrase is therefore vague and ambiguous in this context, and GW will not be
required to produce complaints in “gender cases,” whatever they are. Nor will GW be required to
produce complaints of “inappropriate sexual conduct.” Many courts have found the adjective
“inappropriate” vague when used in discovery requests. Kaiser v. Gallup, Inc., No. *:13CV218,
39
2014 WL 7014042, at *3 (D. Neb. Dec. 11, 2014) (finding a discovery request vague that used the
term “inappropriate behavior” without further clarification); Mathews v. Denver Newspaper
Agency LLP, No. 07-cv-2097, 2008 WL 3845262, at *1–2 (D. Colo. Aug. 14, 2008) (indicating
that the term “inappropriate conduct” is vague without further clarification); Williams v.
Hernandez, 221 F.R.D. 414, 417 (S.D.N.Y. 2004) (finding a request for admission asking whether
a defendant had been disciplined “for inappropriate conduct” was “vague and contain[ed] terms
that are not clearly defined”). Therefore, RFP No. 20 is further narrowed to reports and complaints
of gender discrimination (including pay discrimination based on gender) and sexual harassment.
3. Other Issues
Two issues remain. EEOC seeks discovery of complaints or reports (limited here to gender
discrimination and sexual harassment) made against Mr. Nero not only by GW employees, but
also by GW students. It also seeks discovery of claims of sexual harassment made against Mr.
Nero by men. ECF No. 50 at 43; EEOC Letter Brief at 2. That request is apparently inspired by
the existence of a video of Mr. Nero that allegedly shows him “harassing a male student.” EEOC
Letter Brief at 2. EEOC argues that the video might be evidence of a “pattern of bias in favor of
males” (id.) and expounds that “it is not difficult to make the connection between complaints that
[Mr.] Nero engaged in sexual harassment of a male and the complaint in this case—that he was
biased towards and favored male employees over females, including in his pay decisions”
involving Mr. Aresco and Ms. Williams (ECF No. 50 at 43; see also Mar. 12 Tr. at 110).
EEOC—like any other litigant before a federal court—would be better served by spelling
out its argument than by trusting that it is self-evident. Indeed, “perfunctory and underdeveloped
argument, and arguments that are unsupported by pertinent authority” may be deemed forfeit,
Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013), and the Court does so deem EEOC’s
40
argument here. In any event, it is hard to understand how harassing a male student shows bias in
favor of males or how evidence of harassment of men helps EEOC prove that in this case Mr. Nero
had a bias against Ms. Williams based on her gender. Perhaps EEOC is suggesting that an
individual who would harass a man would also be likely to engage in other bad acts, such as gender
discrimination against women. But that is precisely the kind of “inference the law never permits
a finder of fact to draw.” Sorrell, 252 F.R.D. at 40. In any event, the Court refuses to construct
an argument or to speculate further as to what EEOC might have said but did not. As this case
involves alleged bias against a woman, GW shall not be required to produce reports or complaints
of gender discrimination or sexual harassment made against Mr. Nero by men. 14
However, in light of the discussion above relating to this RFP, the Court finds that GW has
not shown that complaints of gender discrimination or sexual harassment made by female students
against Mr. Nero are irrelevant to the claims in this case. Such discrimination is of the same “type”
as that charged her—i.e. based on gender—and could be probative of “gender-based hostility”
used to “subordinate” or “demean” women. Farmer Bros., 31 F.3d at 897. A complaint, for
example, that during the relevant time frame Mr. Nero, as Athletic Director, discriminated against
female student athletes with respect to some part of GW’s athletic program may be probative of
his bias against women more generally. Therefore, in response to RFP No. 20, GW shall produce
non-privileged documents relating to any report or complaint that Mr. Nero subjected any female
GW employee or GW student to sexual harassment or discrimination on the basis of sex or gender
during the period between June 2013 and June 2018. 15
14
For what it’s worth, the Court has reviewed the video that EEOC cites as support for its request and finds it probative
of nothing relevant to this case.
15
GW’s interposition of a so-called Kolstad defense to punitive damages under Title VII does not change this
conclusion. In Kolstad v. American Dental Association, the Supreme Court held that “in the punitive damages context,
an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where
these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” 527 U.S. 526, 545 (1999)
41
IV. CONCLUSION
Courts rely on the parties to cooperate when discovery disputes arise with a “full and
diligent effort to resolve any disagreements with a meaningful view towards reasonable
compromise.” Osborn v. Prime Tanning Corp., No. CV 11-2346, 2011 WL 13220316, at *2 (C.D.
Cal. Aug. 2, 2011) (emphasis omitted and emphasis added); see also Scruggs v. Getinge USA, Inc.,
258 F.R.D. 177, 180 (D.D.C. 2009) (“It bears repeating again: it is the Court’s hope—indeed, its
expectation—that the parties will resolve any remaining discovery disputes through negotiation
and compromise.”). To foster that spirit of cooperation and compromise, parties must recognize
that “[t]he Federal Rules of Civil Procedure do not require perfection or guarantee
that every possible responsive document will be found and/or produced.” Edwards v. Scripps
Media, Inc., 331 F.R.D. 116, 124 (E.D. Mich. 2019) (quoting Zest IP Holdings, LLC v. Implant
Direct Mfg., LLC, No. Civ. 10-0541, 2013 WL 6159177, at *10 (S.D. Cal. Nov. 25, 2013)). The
Court expects the parties to keep that in mind going forward.
For the reasons discussed above, it is hereby
ORDERED that GW shall produce the following documents:
(1) In response to RFP No. 10, all non-privileged emails from Mr. Aresco’s
email account that include Mr. Nero or Ms. Williams as a sender or
recipient, for the time period identified in the RFP. In compliance with its
representation at the March 12, 2020 hearing, GW shall not withhold emails
(quoting Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting)). Courts have
recognized that pleading such a “good faith efforts” defense “open[s] the door to proof of other employment
discrimination cases against [the defendant].” Estes v. Georgetown Univ., 231 F. Supp. 2d 279, 285 n.7 (D.D.C.
2002), vacated pursuant to settlement (Oct. 23, 2003). However, cases cited by both parties here recognize that, at
most, the defense allows discovery into other complaints of the same type of discrimination pleaded in the plaintiff’s
complaint. See, e.g., EEOC v. Mgmt. Hospitality of Racine, 666 F.3d 422, 439 (7th Cir. 2012) (indicating, in a sexual
harassment case, that the employer’s conduct in connection with sexual harassment claims made by individuals other
than the plaintiff were relevant to the issue of whether the employer engaged in good faith efforts to comply with Title
VII), cited in ECF No. 50 at 44 (EEOC’s supplemental brief); Lowery v. Circuit City Stores, 206 F.3d 431, 446 (4th
Cir. 2000) (indicating, in a racial discrimination case, that the employer’s conduct in connection with other racial
discrimination claims was relevant to its good faith efforts to comply with the law), cited in ECF No. 47 at 28 (GW’s
supplemental brief). That is precisely the standard for relevance that the Court has applied here.
42
based on relevance. Mar. 12 Tr. at 82–83. GW shall redact information
protected from disclosure by FERPA.
(2) In response to RFP No. 11, all non-privileged emails from Ms. Williams’
email account that include Mr. Nero or Mr. Aresco as a sender or recipient,
for the time period identified in the RFP. In compliance with its
representation at the March 12, 2020 hearing, GW shall not withhold emails
based on relevance. Mar. 12 Tr. at 82–83. GW shall redact information
protected from disclosure by FERPA.
(3) In response to RFP No. 24, all non-privileged emails from Mr. Nero’s email
account between Mr. Nero and third-parties that include a reference to Mr.
Aresco or Ms. Williams, for the period between September 1, 2014 (when
Ms. Williams began working as Mr. Nero’s Executive Assistant), through
March 31, 2017 (when Mr. Aresco left his position as Mr. Nero’s Special
Assistant). GW shall also produce all non-privileged emails in this account
that are either to or from Ms. Williams or Mr. Aresco and are not duplicative
of those produced as directed above in (1) and (2). In compliance with its
representation at the March 12, 2020 hearing, GW shall not withhold emails
based on relevance. Mar. 12 Tr. at 82–83. GW shall redact information
protected from disclosure by FERPA.
(4) In addition to those emails, a random sampling of ten percent of the
remaining non-privileged emails from each of those three email accounts.
Again, GW shall not withhold emails based on relevance. Mar. 12 Tr. at
82–83. GW shall redact information protected from disclosure by attorney-
client privilege, work product protection, or FERPA.
(5) In response to RFP No. 20, non-privileged documents relating to any report
or complaint that Mr. Nero subjected any female GW employee or GW
student to sexual harassment or discrimination on the basis of sex or gender
during the period between June 2013 and June 2018.
SO ORDERED. Digitally signed by
G. Michael Harvey
Date: 2020.06.26
Date: June 26, 2020 12:45:45 -04'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
43