In Charvat v. Valente, et al., No. 12 CV 5746 (N.D. Ill. Mar. 3, 2015), a class action lawsuit brought against various defendant telemarketing companies and cruise ship companies, the Northern District of Illinois considered whether a defendant can unilaterally designate email custodians without any input from Plaintiff.
The court had ordered Plaintiffs to hire an ESI expert to work with Defendant Carnival Cruise Line (“Carnival”) so that the parties could agree to an ESI Protocol Order. Plaintiff’s ESI expert contacted Carnival’s counsel to discuss a methodology for obtaining relevant email communications. Carnival informed Plaintiff’s expert that it had already chosen 11 custodians whose emails would be searched using the search terms that Plaintiff had provided. Carnival, however, had never consulted with Plaintiff about which custodians it should search. Plaintiff wanted Carnival to search the emails of additional custodians, including Carnival’s president and the president’s executive assistant, and the vice president of marketing.
While the court noted that Plaintiff’s expert could have acted more quickly in contacting Carnival’s counsel following the court’s order (the expert had waited over two months), the court was “troubled” by Carnival’s unilateral selection of custodians without input from Plaintiff. Accordingly, the court ordered the parties to hold a meet and confer to review the searches already performed and to agree on any additional searching that needed to be completed. The parties should then, within thirty days of the order, file an agreed upon plan for completion of Carnival’s ESI discovery.