“Diligent Search,” But No Responsive Data Is Insufficient Response

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In EEOC v. Mia Aesthetics Clinic ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. May 30, 2025), the EEOC prevailed on several discovery disputes. It prevailed because its attorneys did their homework and supported their litigation position with facts.

The EEOC sued Mia Aesthetics on behalf of Kiera Webb, alleging disability discrimination.  The agency moved to compel discovery responses.  The Mia Aesthetics court wrote that the motion was committed to its sound discretion. Seven custodians were involved.  Ms. Webb had been employed for four months.

One theme of the decision is that a producing party “[s]imply stating that a ‘diligent search’ was conducted” and it found nothing “will not suffice.”  It must also describe what it did.

The EEOC sought: 1) Salesforce data showing what Ms. Webb did; 2) emails Ms. Webb sent to management; 3) Ms. Webb’s Google voice data; and, 4) Ms. Webb’s communications on Slack.  The EEOC also asked the court to order Mia Aesthetics to retain an e-discovery vendor.  It prevailed on all except the latter.

MIA AESTHETICS’ CONCLUSORY RESPONSE OF NO SALESFORCE DATA WAS INSUFFICIENT

In part, Mia Aesthetics argued that the Salesforce data had been deleted when Ms. Webb was terminated. It argued that it had performed a “diligent search.” 

The EEOC factually challenged that argument, pointing to Salesforce help materials showing that Salesforce has a backup recovery system.  It argued that Mia Aesthetics failed to detail the steps it had taken.

As an aside, this argument shows that the EEOC did its homework.  It is frequently a good idea to review the sales and promotional publications about an opponent’s information technology systems.

The Mia Aesthetics court wrote that a party cannot be compelled to produce documents that no longer exist or are not in its possession, custody, or control.  However, Fed.R.Civ.P.26(g) requires a reasonable inquiry.

Under that standard, the Mia Aesthetics court wrote that the conclusory representation of a “diligent inquiry” was insufficient:  “Simply telling the Court and the opposing party that the search was ‘diligent’ does not allow for any real evaluation of the responding party’s efforts.” [emphasis added]. Specificity is required, according to the court.  Further, the EEOC provided information showing that the Salesforce data may exist as an Excel spreadsheet.

The court wrote:

In order to ensure Defendants’ compliance with their Rule 26 obligations in connection to document requests 18, 31, and 32, the Court orders that Defendants do the following: first, Defendants must conduct a reasonable inquiry into any Salesforce data they either possess or could possess upon demand that relates to Webb both within Salesforce itself and in any other form. For example, this includes both contacting Salesforce to inquire whether a backup is available and searching for [E]xcel files that contains Webb’s Salesforce data. Second, if any documents are found to exist that have not yet been produced, Defendants must produce them to the EEOC. Third, Defendants must outline in detail in a document they provide to Plaintiff how they conducted their search and retrieval efforts for Salesforce data regarding Webb. Simply stating that a “diligent” search was conducted will not suffice. [emphasis added].

EEOC v. Mia Aesthetics Clinic ATL, LLC, No. 1:24-CV-3407-MLB-AWH (N.D. Ga. May 30, 2025).

MS. WEBB’S EMAILS

The EEOC sought emails Ms. Webb sent to management employees and emails Ms. Webb sent after Mia Aesthetics’ business hours.  It acknowledged that Mia Aesthetics had migrated to a new email system; however, the EEOC asserted that Mia Aesthetics failed to provide any details about pre-migration backup or a comparison of the new and old systems.

The court wrote that “Defendants echo their position on Salesforce data: the requested information does not exist.”

Again, the EEOC did its homework and submitted a factual predicate. The EEOC provided “emails that have not been produced… by Defendants.”  Interestingly, this is the same type of evidence produced two decades ago in the seminal Zubulake case.  Book Review: “Zubulake’s e-Discovery: The Untold Story of My Search for Justice,” by Ms. Laura A. Zubulake (Aug. 18, 2012).¹  The EEOC sent a preservation letter on December 29, 2021, and one of the employees whose email had not been produced left Mia Aesthetics’ employment in February 2022. 

The Mia Aesthetics court wrote:

As is the case with the Salesforce data, the Court cannot evaluate whether Defendants have made a reasonable inquiry into the requests for production sought by the EEOC. Besides representing in their response brief to the instant motion that they “performed the search of emails relating to Ms. Webb’s employment between Ms. Webb and” various individuals, Defendants provide no context for the inquiries they have made…. And while Defendants have filed an exhibit containing search terms they used, it is not clear from that exhibit whether those search terms were used in searching Outlook, another application or set of files, or both…. Moreover, whether simply searching in Outlook with the terms listed in their exhibit would uncover all email files responsive to the EEOC’s request is unclear. Defendants cannot simply search Outlook with a few terms, find nothing, and tell the EEOC that there are no responsive files. The undersigned has difficulty believing that over the course of four months of employment, Webb communicated with the Vice President of Human Resources just eight times (despite Webb’s ongoing medical condition) and just once with her sales manager, Yolanda Torres…. With that being said, the Court understands that it could be the case that those indeed were the only conversations Webb had with those employees. But again, the Court cannot evaluate whether a good faith effort has been made to search for and retrieve responsive data without a more detailed explanation of the process used by Defendants. The emails strike the Court as directly relevant and proportionate—after all, Webb only worked for Defendants for about four months. [emphasis added].

Id.

The court ordered a reasonable inquiry into email files that Mia Aesthetics possesses, “or could possess upon demand,” regarding Ms. Webb’s communications with five other people. Further:

Defendants must outline in detail in a document they provide to Plaintiff how they conducted their search and retrieval efforts for the email files. Simply stating that a “diligent” search was conducted will not suffice.

Id.

GOOGLE VOICE AND SLACK COMMUNICATION

The EEOC requested Ms. Webb’s communications on these platforms to Mia Aesthetics’ management level employees. It asserted that Ms. Webb was communicating with at least one of them.  Mia Aesthetics stated that it did not have possession or control over the data.

The Mia Aesthetics court cited precedent that a defendant must make a reasonable effort, assisted by a vendor, to recover or restore relevant and responsive ESI that was lost or deleted.  It added: “As far as the Court can tell, Defendants have made no real representation regarding their efforts to recover and produce the responsive Slack and Google Voice data.”  It wrote:

While the EEOC may have the initial burden of proving that the requested discovery is relevant and proportional, it is not the requesting party’s duty to, for example, establish with evidence that “Google Takeout is a service available to Defendant.”

Id.

The court ordered a reasonable inquiry into “any Google Voice and Slack files they either possess or could possess upon demand that relates to Webb. This includes but is not limited to contacting both companies to inquire about potential backups or the like.” [emphasis added].  Further, the court again ordered Mia Aesthetics to describe “in detail” their search and retrieval efforts.”

EEOC’S REQUEST FOR A COURT-ORDERED VENDOR

The EEOC asked the court for this relief and asserted that it was both proportional (involving only seven custodians over four months of employment) and necessary “given Defendants’ failure to conduct adequate searches to produce the ESI themselves.”

In response, Defendants argue that Plaintiff’s request for a court-ordered vendor is based on speculation and wholly disproportionate to the needs of the case…. Defendants add that such orders by courts are limited to circumstances in which the party has demonstrated technical incompetence or a demonstrated attempt to secrete evidence.

Id.

The Mia Aesthetics court agreed with the EEOC that there was precedent supporting its request, but denied it.  The Judge “does not lack all confidence” in Mia Aesthetics’ “ability to search their records….”  The court held that Mia Aesthetics’ lack of detail did not necessarily show insufficient future efforts: “The lack of detail simply has the effect of keeping the Court, and [EEOC], in the dark. 

However, the court left the door open: “[I]f Defendants would like to avoid the cost of hiring a third-party vendor, they must prove that they can and have properly complied with their discovery obligations on their own.”

Finally, the court summarized its order and established milestones for compliance.  The next milestone will be June 13, 2025.  Then, the EEOC will have two weeks for any remaining objections.

Notes

1. UBS Warburg initially produced 100 pages of email, insisting that its production was complete. Ms. Zubulake, however, “was taken aback by the paucity of [UBS Warburg’s initial document] production,” in part because she had printed and retained 450 pages before her termination.  In the Court’s words: “Clearly, numerous responsive e-mails had been created and deleted at UBS, and Zubulake wanted them.” ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.