Unreported / Non-Citable
Background
Four California environmental nonprofits, including Sierra Club, Inc., sued Exxon Mobil Corporation over its production and marketing of single-use plastics, including its advanced recycling program. The parties agree discovery begins January 1, 2010. Plaintiffs identified eight business areas and more than 100 potential custodians. ExxonMobil designated fourteen custodians. It says they cover all eight areas at leadership and working levels, reach beyond advanced recycling into its plastic-polymer business, and mostly have tenures back to 2010. Plaintiffs narrowed their request to forty-four more custodians and supplied a table giving their basis for each. The bases ranged from a job title and public profile to produced documents showing involvement in advanced recycling or sustainability review. ExxonMobil estimates the agreed search terms will already yield more than 250,000 documents from the fourteen.
Plaintiffs also sought organizational charts, or documents sufficient to show where proposed custodians fit in the company, from 2010 forward. ExxonMobil's counsel said it does not maintain charts of that type. ExxonMobil says the advanced-recycling charts it had produced were prepared for restructuring planning and presentations and do not show reporting lines. It offered in October to create charts but did not, and later supplied a letter and a table mapping each business area to its organization and designated custodians. It says it keeps only employees' job titles and organizational assignments during their tenure. Plaintiffs moved to compel the charts and the added custodians or, alternatively, limited custodian depositions outside the ten-deposition limit. The court ruled on a joint letter without oral argument.
The Court’s Holding
The court granted the motion only in one narrow respect. It accepted counsel's representation that no reporting-line charts exist and held that Rule 34 does not require a party to create documents. An offer to create charts as a compromise was not an admission that they exist. But plaintiffs had also asked for other documents sufficient to show where custodians fit, and ExxonMobil concedes it keeps job titles and organizational assignments. The court therefore ordered it to produce within fourteen days documents sufficient to show, or a written statement of, the job titles, organizational units and dates for the fourteen designated and forty-four proposed custodians from January 1, 2010 forward. The information is relevant, ExxonMobil claims no burden, and it bears on the disputed question whether the designated custodians' tenures span the period and businesses at issue.
The court denied without prejudice the request to search forty-four more custodians. It treated the parties' competing standards as one Rule 26 inquiry. The responding party selects custodians first, and the requester must show that proposed custodians likely hold relevant information that the designated custodians' files will not. Plaintiffs' claim that the fourteen work almost exclusively on advanced recycling, begun in 2021, was not supported by the record, which showed polymer marketing, sales and supply personnel with tenures back to 2010. Their argument that a company of 20,000 U.S. employees must have more relevant people did not address duplication. For nearly half the proposed custodians plaintiffs offered only a title and public profile. For the rest, ExxonMobil responded that a designated custodian sent or received the cited documents or oversaw the team. The court deferred, rather than finally rejecting, adding the CEO, and invited renewal if the production lacks materials prepared for his public statements and what he was told. It also found that more than tripling the custodian set, without a showing of added value, is not proportional. The deposition request was denied without prejudice as premature, noting that a Rule 30(b)(6) deposition is the ordinary tool for learning how a company is organized.
Key Takeaways
- Rule 34 does not require a party to create organizational charts it does not keep, but it may have to produce existing records showing job titles, units and dates.
- A party seeking custodians beyond those the responding party designated must show they likely hold relevant information that the designated custodians' files will not.
- A job title, public profile or inference from company size will not carry that burden, while evidence of decision-making roles or gaps in time or subject usually will.
- Documents showing a proposed custodian's involvement can establish relevance yet still fail if a designated custodian sent or received them.
- Both denials are without prejudice, so plaintiffs may renew with specifics after reviewing the production.
Why It Matters
This is a magistrate judge's discovery order in a pending case, not a final judgment, and it carries only persuasive weight in other cases. Its contribution is reconciling the requester's proportionality framing with the responding party's gap-filling framing, and applying the result to executive custodians, company-size arguments and requests for depositions outside the ten-deposition limit.
Much remains open. Plaintiffs may renew the custodian request, including as to the CEO, once they review the production and the ordered title-and-assignment information. The court did not decide whether any specific proposed custodian must be added. It also did not rule on a Rule 30(b)(6) deposition, noting only that it is the usual tool.