[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Plaintiffs in a Fair Labor Standards Act collective action sought broad discovery from seven apex executives of defendant Perdue Foods. Tripp v. Perdue Foods LLC, 2026 WL 1021135 (D. Md. Apr. 15, 2026)(Coulson, J.).
The parties were diametrically opposed: “Plaintiff seeks an order compelling the production of certain ESI from Perdue, and in turn, Perdue seeks a protective order from the same on the basis that the requests are unduly burdensome.”
Plaintiffs requested discovery from 7 executives with 300 search terms. In Phase I, they were permitted only a 25% sampling from 4 of them, using 73 search terms. The Court left the door open for Phase II requests.
The stakes were high, with the Court writing:
As an initial matter, Perdue opens its position statement with some concern that Plaintiffs seek the best of both worlds: They have failed to provide discovery responses for twenty-one opt-in Plaintiffs, yet have brought the instant dispute seeking “an extensive amount of [ESI] from Perdue from 29 different custodians and 7 executives on top of that, which will cost well over $1.5 million dollars to process, host, review, and produce.” [emphasis added].
In addition to the dispute over custodians, Plaintiffs wanted to use 300 search terms. Purdue suggested 73.
Perdue—prudently—offered a compromise. The Court wrote:
In sum, “Perdue requests that the Court adopt its reasonable compromise proposal for ESI—to search a 25% sampling of Levengood’s and Levintini’s emails, along with a 25% sampling of the 21 other custodians Perdue proposed, that hit on any of Perdue’s proposed 73 search terms.”
The Court wrote that “Plaintiffs are not satisfied with such a proposal, but they offer no explanation as to why the proposal is insufficient under Rule 26(b)(1).”
The Court was not satisfied that there was a sufficient showing by Plaintiffs that the requested discovery was sufficiently important:
The parties make much of the numerical breakdowns involved in their proposals, i.e., how many custodians or executives must produce ESI, how many search strings are involved, and how many documents various search proposals yielded. However, in the Court’s view, such data assists the Court only in contemplating the proportionality prong of a Rule 26 analysis. The Court accepts that a $1.5 million cost to produce ESI is extraordinary, but it is unclear from the correspondence how critical the requested information is. Where the parties have provided their search terms, the arguments do not elaborate in much meaningful detail how any one proposal is more appropriate under Rule 26 than the other. Nor do Plaintiffs make clear why the proposed 73 terms and two executives are not enough. [emphasis added].
The Court recognized a number of Plaintiffs’ concerns; however, it wrote that “it is unclear how the 73 proposed terms would not allow them to adequately consider those issues without imposing a $1.5 million dollar burden upon Perdue with a total of nearly 300 search terms.”
As to the request for discovery from seven executives: “However, in the Court’s view, the information from seven executives is unduly burdensome in light of Perdue’s proposed compromise.” [emphasis added].
“As such, the Court finds it appropriate to compel production of the following, based on a compromise between to the parties’ proposals:
(1) Perdue shall provide a 25% sampling of the twenty-one custodians Perdue proposed;
(2) Perdue shall provide a 25% sampling of the four executives of Plaintiffs’ choosing (from those seven Plaintiffs have named) in its ROG responses as custodians;
(3) Perdue shall produce ESI for the 73 search terms it proposed.”
That will be Phase I. As to further inquiry, the Court left the door open to Phase II:
Plaintiffs correctly point out that there does not exist any blanket rule barring the discovery of information from executives. As such, the Court’s Order shall not be construed as a conclusion that the executives’ email data is or is not privileged, and the Court is willing to consider those issues in greater detail once ripe. [emphasis added].
Depositions from high business executives are often decided under “apex” principles:
- More on Apex Depositions (Jul. 14, 2025);
- “Apex” Depositions of High Government Officials Under the “Morgan” Doctrine (May 20, 2025).
But, while the limiting “apex doctrine” generally does not apply to document custodians, it may be made to apply under the terms of an ESI Protocol. Based on the ESI Protocol, the Limiting “Apex Deposition” Doctrine Applied to Objections to the Designation of a Document Custodian (Jul. 1, 2025).
In Tripp it appears that the Plaintiffs rolled the dice. Purdue offered, in my words, to cooperate. Instead of 300 search terms, Plaintiffs got 73. Instead of 7 apex executives, Plaintiffs got 4. Instead of 29 other custodians, they got 25% of 21.
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
Abraham Lincoln, 16th President of the United States.
In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling,” as quoted in There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).
Abraham Lincoln once said: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
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