EEOC’s Tenacious Pursuit of Discovery Bore Fruit

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

The EEOC sued a business that managed apartment complexes, alleging employment discrimination. The court wrote that the parties had been “embroiled” in a discovery dispute over GEM’s responses. The EEOC diligently pursued discovery. After a “provisional” discovery order was entered, EEOC’s subsequent motion to compel was substantially granted. EEOC v. GEM Management, LLC, 2026 WL 1363162 (E.D. Ky. May 15, 2026).

Faced with GEM’s complaint that a third production would be costly, the court wrote that GEM should have done it right the first time.

Because the GEM court addressed five interrogatory answers and responses to seven document requests, I follow the court’s guidance. The court wrote that “GEM’s failures… are too egregious and numerous to take on individually.” Id. at *4.

Interrogatory No. 21(e) asked GEM to provide: “A description of steps taken to recover responsive emails from each individual’s company email account….” Id. at *3.

That question may be viewed as “discovery on discovery.”¹ GEM did not provide the requested information. However, the GEM court wrote: “The Court has already ordered GEM to ‘answer all subparts of Interrogatory No. 21 or state a valid objection thereto.’… GEM is compelled to answer subsection e.” Id. at *4.

The EEOC also noted that GEM’s answer provided only one email address for the employees. The EEOC had requested “each” address and GEM had “likely” provided two addresses to the employees. The court wrote that the Federal Rules mandate “accurate, complete information” and it compelled a complete response. Id. at *4.

Addressing a separate interrogatory, the court found GEM’s answer incomplete. It wrote:

Parties must respond truthfully, fully and completely to discovery or explain truthfully, fully and completely why they cannot respond…. If a party is unable to supply the requested information, … [the party] must state under oath that he is unable to provide the information and set forth the efforts he used to obtain the information.

Id. at *1 (emphasis added; citation omitted).

In another interrogatory, the EEOC asked GEM to identify all complaints about an employee. GEM responded that it sought to identify any “electronic and/or handwritten responsive” complaints. The court wrote:

Interrogatory No. 18 does not limit the request to “electronic and/or handwritten responsive complaints.” GEM may not unilaterally narrow the scope of the request…. GEM is compelled to produce any additional responsive information, regardless of if it is a “electronic and/or handwritten.”

Id. at *2 (emphasis added; citation omitted).

In answering a different interrogatory, GEM “points to documents turned over in discovery to answer Interrogatory No. 20….” The GEM court wrote that “this is permitted so long as the documents, in fact, answer the Interrogatory. That is not the case here.” Id. at *3.

Turning to the responses to the EEOC’s document requests, the EEOC asserted that it had “[o]ver the past ten months, … repeatedly asked GEM to propose search terms for ESI so [the EEOC] could respond with suggestions and the parties could cooperatively find a workable plan for email searches and production. [The EEOC] also repeatedly suggested the parties make use of liaisons with IT / ESI expertise…. GEM repeatedly refused or failed to do either.” Id. at *4.

On those facts, the court’s analysis was:

The Court agrees that GEM’s [search] efforts were woefully insufficient. EEOC has provided a surfeit of evidence that GEM’s searches should have included additional search terms (for example, the term “Travis” was excluded despite being the name the alleged harasser went by), that obviously responsive documents in EEOC’s possession were not produced (for example, a forwarded email but not the original email…, and that GEM employees testified about several emails or categories of emails that have not been produced.

Id. at *5 (emphasis added). 

The court had previously ordered that GEM describe its search terms, and:

GEM points to Exhibit 4… to explain its compliance with the Provisional Order. Exhibit 4 purports to explain GEM’s methodology and search terms. This methodology and search terms are inadequate and do not meet the generally accepted electronic discovery standards of our time. GEM does not supply a list of custodians. GEM did not supply a date range for its search. GEM’s list of search terms is largely a list of who the Court presumes to be custodians. GEM’s additional search terms are primarily the names of GEM employees plus “charge of discrimination” or similar. GEM’s “methodology explanations” include: “[r]egarding the issue of search methodology, in June 2025 it was requested that GEM undertake an email search of the following search terms”; “the following specific searches were requested to be completed”; and “it was requested that a specific search for any responsive materials applicable to this request for production be conducted cumulatively utilizing all search terms referenced in this correspondence.” … GEM’s use of passive voice throughout its description of its methodology is curious, to say the least. The Court agrees with EEOC that the February 17, 2026, letter “appears to admit that GEM used these individuals’ names as search terms rather than treat them as custodians” and that “GEM apparently engaged in self-collection.”

Id. at *5 (emphasis added).

Rejecting GEM’s approach, the court stated: “GEM’s methodologies, search terms, dates (undisclosed), and custodians (also undisclosed) are manifestly unreasonable and EEOC has demonstrated with specific evidence that the resulting production is deficient. GEM’s letter of February 17, 2026, is missing the information the Court already ordered to be disclosed and treats the search of GEM’s email and computer systems as little more than a casual ‘Ctrl+F’ exercise among current GEM employees.” Id. Further, the court rejected unsupervised custodial self-collection. Id.²

Additionally, the GEM court addressed a form of production issue. Fed.R.Civ.P. 34 permits a requesting party to specify the form or forms of production. The EEOC’s request comported with that principle: “EEOC requested ESI be ‘produced in single-page TIFF format with a delimited DAT file containing certain metadata fields outlined in the EEOC’s form of production document[.]’” 

Here:

The Court’s Provisional Order required GEM to produce responsive ESI in native or TIFF format with the load file…. EEOC stated that GEM “has produced only 22 emails in native form…. The remaining few emails were produced as PDF files. Aside from a few Excel spreadsheets and .JPG files, all other documents Defendant produced were in PDF format. Further, Defendant did not produce a load file.” … GEM contends it has “attempted to comply” with the Court’s Provisional Order.

Id. at *6. 

Rule 34 is unambiguous. A producing party must comply with the requested form or specify the form or forms it intends to use. In addressing the EEOC’s motion to compel, the GEM court cited the 2006 Advisory Committee note to Rule 34:

Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form.

Id. at *6 (emphasis added).

The GEM court’s decision was: “To the extent GEM has produced documents in their true native format, the motion to compel is denied, subject to reproduction under Section I, below. For all other documents, the Court compels GEM to reproduce all documents in their native format or as TIFF files and produce a load file.” Id. at *7. In short and in my words, by not complying with the strict rubric of Rule 34, GEM incurred additional costs.

Finally, in resolving a dispute over Bates numbering and the scope of a second production, the court wrote:

Primarily, GEM argues that it is unduly burdensome for it to have to reproduce the Bates Stamped documents a third time. GEM incomprehensibly seeks to blame EEOC, or the Court, or its third-party document management company for the costs it is running up in producing and reproducing its Bates Stamped documents. This deflection does nothing but highlight who is at fault for the rising costs of this litigation: GEM. If GEM would like to confine litigation costs in the future, the Court suggests doing it right the first time.

The Court grants EEOC’s motion to compel reproduction of all documents with sequential Bates Stamp numbers. GEM may comply by numbering all previously produced pages and all future discovery beginning with GEMLLC_00001, GEMLLC_00002, etc.

Id. at *7-8 (emphasis added).

Notes

1. For more about “discovery on discovery,” see “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold; “Discovery on Discovery” Permitted; Guidelines for “Discovery on Discovery”; Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request. ↩︎
2. For more on self-collection, see “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System; Unsupervised Self-Collection Predictably Led to Problems. ↩︎

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