Newman v. The Associated Press

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-20684-MOORE/Elfenbein

NOACH NEWMAN, et al.,

Plaintiffs,

v.

THE ASSOCIATED PRESS,

Defendant.

________________________/

ORDER ON PLAINTIFFS’ SECOND ORAL MOTION TO COMPEL

THIS CAUSE is before the Court on Plaintiffs Noach Newman, Adin Gess, Maya

Parizer, Natalie Sanandaji, and Yoni Diller’s (“Plaintiffs”) Second Oral Motion to Compel, ECF

No. [82], and Defendant the Associated Press’s ore tenus Motion to Seal, ECF No. [83]. In their

Notice of Hearing, ECF No. [68], Plaintiffs alerted the Court to the following dispute that was

discussed at the Discovery Hearing held on September 6, 2024 (the “Hearing”): “Whether to

include the custodian of Defendant The Associated Press’ (“AP”) President and Chief Executive

Officer Daisy Veerasingham in the custodians to be searched by AP.” ECF No. [68] at 1. The

Honorable K. Michael Moore has referred this case to me “to take all necessary and proper action

as required by law with respect to any and all pretrial discovery matters.” ECF No. [26]. Having

considered the Parties’ respective filings, the record, and the relevant law, Plaintiffs’ Second Oral

Motion to Compel is DENIED and Defendant’s ore tenus Motion to Seal is GRANTED.

I. BACKGROUND

In the Order on Plaintiff’s first Oral Motion to Compel (the “Order”), the Court ordered

Defendant to “provide Plaintiffs with a list of custodians which it searched in pursuit of the

discovery materials sought by Plaintiffs.” ECF No. [59] at 5. If Plaintiffs identified other

individuals that should be designated as custodians, the Order provided the Parties with a

procedure to address that issue. See id.

On August 1, 2024, Defendant complied with the Order and sent Plaintiffs a letter with a

list of 20 custodians it would search for responsive documents. See ECF No. [68-3] at 2. Plaintiffs

responded, on August 22, 2024, seeking an explanation as to why (1) Daisy Veerasingham (“Ms.

Veerasingham”) — the President and Chief Executive Officer of the Associated Press, (2) Jessica

Bruce — Senior Vice President, Human Resources and Corporate Communications at the

Associated Press, and (3) Clare Solly — the Executive Assistant to Daisy Veerasingham were not

included on the list of custodians provided by Defendant on August 1, 2024. See id. at 2, 5.

The Parties met and conferred, and, during that conferral, Defendant agreed to add Jessica

Bruce as a custodian but declined to include Ms. Veerasingham and Clare Solly as custodians. See

id. at 5. Defendant explained to Plaintiff, in an email dated August 28, 2024, that “Ms.

Veerasingham had no direct involvement in any of the issues relevant to this case, and there is no

relevant information to be gleaned from her documents beyond what is already available from the

existing custodians.” Id. Defendant continued stating that “[t]o require [it] to search the CEO’s

materials where Plaintiffs have not demonstrated that she would have relevant information is

overly burdensome and not proportional to the needs of Plaintiffs in the case.” Id. Unable to

resolve this discovery issue, Plaintiffs contacted the Court to set this matter for hearing.

At the Hearing, Plaintiffs argued that Ms. Veerasingham had responsive documents and,

therefore, Defendant should search her as a custodian. To substantiate this claim, Plaintiffs point

out that (1) Ms. Veerasingham appears 21 times in Defendant’s privilege log and (2) Defendant

produced documents showing that Ms. Veerasingham was involved in issues relevant to the instant

case. See ECF No. [68-2] at 33-42; ECF No. [68-3] at 7-10; see generally ECF No. [77]. Five of

the eight documents Plaintiffs relied on in support of the Second Oral Motion to Compel were

designated “Confidential” (the “Confidential Documents”) pursuant to the Court’s Protective

Order, ECF No. [66], which prevented Plaintiffs from making them available to the Court before

the hearing as they could not file them publicly. In light of that limitation, the Court announced

that it would take this discovery issue under advisement and issue a ruling after reviewing the

Confidential Documents. To that end, the Court ordered Plaintiffs to file the Confidential

Documents under seal following the Hearing’s conclusion.

Despite not having the documents available for review, the Court allowed the Parties to

proceed with the Hearing and to present their respective arguments. Given that the Parties would

need to reference and describe the Confidential Documents in open court, Defendant moved ore

tenus to seal the portions of the Hearing transcript that reference or describe the Confidential

Documents. The Court found good cause for the ore tenus Motion to Seal and granted it; the Court

memorializes that ruling in this Order.

To support their position as the moving party, Plaintiffs relied on four documents. First,

Plaintiffs referenced an email sent on November 9, 2023 — on which Ms. Veerasingham was not

copied — that discussed Ms. Veerasingham’s son doing work to vet Hassan Esliah (a freelance

photographer and alleged Hamas operative/sympathizer) from whom Defendant had purchased

photographs in the aftermath of Hamas’s October 7, 2023 attack on Israel (the “October 7 Attack”).

See ECF No. [77-2] at 1. Second, Plaintiffs referenced an update Ms. Veerasingham provided to

Defendant’s board of directors on November 16, 2023, in which she informed the board that she

responded to a letter from United States Senator Tom Cotton inquiring into allegations that

freelance photographers who contributed to Defendant’s coverage of the October 7 Attack were

colluding with Hamas. See ECF No. [77-5] at 5. Plaintiffs argue that Ms. Veerasingham’s

involvement in responding to Senator Collins concerning the October 7 Attack indicates that she

has documents relevant to this case. See ECF No. [68-3] at 7-10. Third, Plaintiffs referenced an

email chain created on November 12, 2023 on which Ms. Veerasingham discussed the statement

Defendant would use in response to inquiries concerning Defendant’s association with Hassan

Esliah and other freelance photographers in Gaza. See ECF No. [77-1] at 1-2. Finally, Plaintiffs

referenced an email chain created on November 9, 2023 on which an employee of Defendant

reported to Ms. Veerasingham about the reputational risk Defendant carried due to its association

with Hassan Esliah and the other freelance photographers. See ECF No. [77-3] at 1-2.

Defendant, for its part, argued that Plaintiffs failed to establish that Ms. Veerasingham

possesses relevant discovery material and, therefore, the Court should not compel Defendant to

designate Ms. Veerasingham as a custodian. At the Hearing, Defendant framed Plaintiff’s

Amended Complaint as alleging that Defendant acquired photographs of the October 7 Attack

from freelance photographers associated with Hamas. Defendant claims that Ms. Veerasingham,

as the President and CEO of an organization as large as Defendant’s, would not have been involved

in either the sourcing or the decision to purchase the photographs taken by the freelance

photographers named in the Amended Complaint. Rather, Defendant’s employees operating in

Gaza and southern Israel made the decision to acquire the photographs at issue in the Amended

Complaint. Furthermore, Defendant claimed at the Hearing that the communications Plaintiffs

relied upon to support their argument were created following a report by HonestReporting — an

Israeli media advocacy group — that accused Defendant and other news agencies of using

freelance photographers embedded with Hamas. HonestReporting’s accusation spurred several

congressional inquiries concerning Defendant’s association with Hassan Esliah and the other

freelance photographers named in the Complaint. Defendant claims that Ms. Veerasingham, as

Defendant’s CEO and President, needed to become aware of the current state of Defendant’s

relationship with the freelance photographers named in the Amended Complaint to respond to

those inquiries and protect Defendant’s reputation. Finally, Defendant argued that compelling

Defendant to designate Ms. Veerasingham as a custodian would not be proportional to the needs

of the case because the costs associated with searching Ms. Veerasingham as a custodian would be

substantial but would yield no benefit to Plaintiffs’ case.

Plaintiffs closed out oral arguments on this issue in rebuttal, asserting that the search of

Ms. Veerasingham would not be as burdensome as Defendant claims and reasserting its belief that

Ms. Veerasingham has discovery materials relevant to the issues in this case.

II. LEGAL STANDARDS

A party may file a motion to compel discovery pursuant to Rule 37(a) of the Federal Rules

of Civil Procedure. Rulings on motions to compel discovery under Rule 37(a) are committed to

the sound discretion of the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729,

731 (11th Cir. 1984) (“Case law states that a motion to compel discovery is committed to the

discretion of the trial court, and the function of this court is to determine whether the trial court

abused its discretion in entering the challenged order.” (citations omitted)).

The Federal Rules of Civil Procedure “strongly favor full discovery whenever possible.”

Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (citation omitted).

Rule 26(b) explicitly permits a party to obtain discovery of “any matter, not privileged, that is

relevant to the claim or defense of any party.” Relevancy is “construed broadly to encompass any

matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue

that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 451 (1978)

(footnote call number and citation omitted).

Although relevance under Rule 26(b)(1) is construed broadly, it is not without limits.

Discovery must not only be relevant to the claims and defenses in the case, but it must also be

“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The parties’ claims and defenses

determine the scope of permissible, relevant discovery. See Chudasama v. Mazda Motor Corp.,

123 F.3d 1353, 1368 n.37 (11th Cir. 1997).

The party resisting discovery bears the burden of demonstrating specifically how the

request is unreasonable or not relevant. See, e.g., Adelman v. Boy Scouts of Am., 276 F.R.D. 681,

697 (S.D. Fla. 2011) (noting that the court could grant the motion to compel “solely based on

[discovery respondent’s] procedurally inadequate objections”). After a properly stated objection

is presented, the proponent of a motion to compel seeking to overrule the objection must prove the

relevance of the requested discovery. See, e.g., Diamond State Ins. Co. v. His House, Inc., No. 10-

CV-20029, 2011 WL 146837 (S.D. Fla. Jan. 18, 2011) (finding that the requesting party had not

shown the relevance of requested deposition).

III. DISCUSSION

As the party moving to compel, Plaintiffs bear the burden of showing that Ms.

Veerasingham is in possession of relevant discovery documents and, therefore, should be

designated a custodian. See e-Ventures Worldwide, LLC v. Toll Bros., No. 22-CV-552, 2023 WL

4419736, at *1 (M.D. Fla. July 10, 2023) (“The party moving to compel discovery bears the initial

burden of proving it is relevant.”). In deciding whether Plaintiffs have carried the burden of

proving relevance, the Court will consider three factors:

First, the Court will consider whether Plaintiffs have established that the list of custodians

Defendant provided is inadequate. See Enslin v. Coca-Cola Co., No. 14-CV-06476, 2016 WL

7042206, at *3 (E.D. Pa. June 8, 2016) (finding that for “a court to compel a party to search the

ESI of additional custodians” “the requesting party [must] show that the responding party’s search

was inadequate.” (footnote call number and citations omitted)); see also In re EpiPen (Epinephrine

Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-2785, 2018 WL 1440923, at *2

(D. Kan. Mar. 15, 2018) (“[A]bsent agreement among the parties, the party who will be responding

to discovery requests is entitled to select the custodians it deems most likely to possess responsive

information and to search the files of those individuals.” (footnote call number and quotation

omitted)).

Plaintiffs have not established that Defendant’s search methods or the procedure by which

Defendant identified the custodians are inadequate. Defendant initially designated 20 custodians

it believed to have documents responsive to Plaintiffs’ discovery requests. See ECF No. [68-3] at

2. After reviewing Defendant’s privilege log, Plaintiffs identified three additional individuals,

including Ms. Veerasingham, who they wanted Defendant to designate as custodians. See id.

Aside from this perceived oversight, Plaintiffs offer no evidence to suggest that the method

Defendant used to designate custodians is inadequate in any way. See id. And to the extent that

imperfections existed in its method, Defendant was receptive to Plaintiffs’ concerns and addressed

them in part by updating the list to include a custodian it agreed would likely possess responsive

documents. See id. at 4-5. In light of the foregoing, Plaintiffs fail to show the inadequacy of

Defendant’s designation process. See The Sedona Conference, The Sedona Principles, Third

Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document

Production A Project of the Sedona Conference Working Group on Electronic Document Retention

and Produ, 19 Sedona Conf. J. 1, 17 (2018) (“The requesting party has the burden on a motion to

compel to show that the responding party’s steps to . . . produce relevant electronically stored

information were inadequate.”);1 see also Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.

2006) (“[T]here is no obligation on the part of a responding party to examine every scrap of paper

in its potentially voluminous files in order to comply with its discovery obligations. Rather, it must

conduct a diligent search, which involves developing a reasonably comprehensive search

strategy.”).

Second, the Court will consider whether Plaintiffs have established that a search of Ms.

Veerasingham “would provide unique relevant information not already obtained.” Fort Worth

Employees’ Ret. Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107 (S.D.N.Y. 2013) (emphasis

in original); see also In re EpiPen, 2018 WL 1440923, at *2 (“[T]he party seeking to compel the

designation of a particular additional ESI custodian has the initial threshold burden of showing

that the disputed custodian’s ESI likely includes information relevant to the claims or defenses in

the case.” (footnote call number omitted)).

Plaintiffs argue that the Confidential Documents and Ms. Veerasingham’s communications

with Senator Collins establish that Ms. Veerasingham possesses unique, responsive documents that

are relevant to its claims. Having reviewed the documents filed under seal, the Court disagrees.

Taking first the emails to which Ms. Veerasingham replied or was copied, none of those

communications demonstrate or suggest that she possesses responsive documents that would not

1 “To resolve disputes regarding the production of metadata, many courts have turned to the Sedona

Principles and Sedona Commentaries thereto, which are the leading authorities on electronic document

retrieval and production.” Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010) (citing John B.

v. Goetz, 531 F.3d 448 (6th Cir. 2008); other citations omitted)

be otherwise produced during Defendant’s search of the 21 designated custodians. See generally

ECF No. [77-1]; ECF No. ECF No. [77-2]; ECF No. [77-3]. Rather, the emails in question show

subordinate employees updating Ms. Veerasingham on Defendant’s current relationship with

freelance photographers operating in Gaza with possible ties to Hamas so that she could effectively

assist Defendant in navigating a reputational crisis. See generally id. And while the Court agrees

that Ms. Veerasingham appears to approve a subordinate’s decision to cut ties with certain

freelance photographers in the email chain created on November 12, 2023, Ms. Veerasingham was

not involved in the micro-level decision-making that concluded in that result. Instead, Ms.

Veerasingham was deferring to the judgment of a subordinate with knowledge of the relevant facts

and details necessary to make that decision.2 See ECF No. [77-1] at 1-2.

These email communications — at least in part — provided Ms. Veerasingham with the

information necessary to update Defendant’s board of Directors and to respond to inquiries from

congressmen. See ECF No. [68-3] at 7-10; ECF No. [77-5] at 5. However, neither that update nor

those communications suggest that Ms. Veerasingham possesses unique discovery documents, but

rather they show Ms. Veerasingham flatly denying allegations that Defendant had advanced

knowledge of the October 7 Attack and statements that Defendant had no knowledge of the

freelance photographer’s connection to Hamas prior to purchasing photographs from them. See id.

Plaintiffs, thus, fail to establish that Ms. Veerasingham has unique discovery material, a

finding which weighs heavily against designating her as a custodian. See In re EpiPen, 2018 WL

1440923, at *4 (denying request to designate an individual as a custodian because said individual

possessed “very limited” “relevant information” and any relevant documents in the individual’s

2 Plaintiffs also reference an email that implies Ms. Veerasingham’s son is involved in vetting the freelance

photographers with possible connections to Hamas. See ECF No. [77-2] at 1. However, it is unclear how

this communication suggests that Ms. Veerasingham possesses unique discovery material, as her son, like

other employees of Defendant, would be operating independently of her.

“possession or control [could have] likely be[en] obtained from already designated custodians”);

see also Enslin, 2016 WL 7042206, at *3 (“[The plaintiff’s] speculation that [the d]efendants’

search failed to uncover that information is insufficient to show that they improperly excluded her

as a custodian.”).

Finally, the Court considers whether compelling Defendant to designate Ms. Veerasingham

as a custodian would be proportional to the needs of the case. See Enslin, 2016 WL 7042206, at

*15 (“The Federal Rules . . . do not require [a responding party] to embark on an unrestricted

search through the ESI of every senior executive employee in the hopes we may find additional

potentially relevant material, especially where, as here, it has almost certainly already been

gathered, processed and reviewed.” (citation omitted)).

Without a finding that Ms. Veerasingham is in possession of unique discovery documents,

a search of her documents will not be proportional to the needs of the case. As it noted at the

Hearing, Defendant is a non-profit organization with over one thousand employees and a global

footprint. Ms. Veerasingham, as Defendant’s chief executive, comes to possess countless

documents concerning Defendant’s global operations unrelated to the instant action. To compel

Defendant to designate Ms. Veerasingham as a custodian would force Defendant to search through

the countless documents in her possession. Imposing that cost on Defendant could be just if Ms.

Veerasingham were in possession of unique discovery documents, but the Court has determined

that she does not. Thus, compelling Defendant to search Ms. Veerasingham as a custodian is not

proportional to the needs of the case and would ultimately be of no benefit to Plaintiffs. See

Devries v. Morgan Stanley & Co. LLC, No. 12-CV-81223, 2015 WL 1623928, at *2 (S.D. Fla.

Apr. 7, 2015) (denying the plaintiffs’ request for “additional [electronically stored information]

from custodians” because the plaintiffs’ request was “unduly burdensome, overbroad, and overly

vague” and because the defendants’ burden in searching for additional electronically stored

information “far outweigh[ed] the benefits”).

In sum, Plaintiffs’ request to compel Defendant to designate Ms. Veerasingham is denied

because (1) Plaintiffs have not demonstrated that the procedure by which Defendant identified the

21 custodians was inadequate, (2) Plaintiffs failed to establish the Ms. Veerasingham is likely in

possession of unique discovery documents, and (3) searching Ms. Veerasingham would add little

to no benefit to Plaintiffs’ cases and, thus, a search of her records would not be proportional to the

needs of the case.3

IV. CONCLUSION

Accordingly, it hereby ORDERED and ADJUDGED as follows:

1. Plaintiffs Noach Newman, Adin Gess, Maya Parizer, Natalie Sanandaji, and Yoni

Diller’s Second Oral Motion to Compel, ECF No. [82], is DENIED.

2. Defendant the Associated Press’s ore tenus Motion to Seal, ECF No. [83], is

GRANTED. The Clerk of Court is DIRECTED to seal the Digital Audio Recording

of the September 6, 2024 Hearing from 00:08:10 to 00:13:20.

3 Before it concludes its discussion of this issue, the Court must explain why it did not rely on Cemex

Construction Materials Florida, LLC v. Armstrong World Industries, Inc., No. 16-CV-186, 2018 WL

11455634 (M.D. Fla. May 16, 2018) — the only case Plaintiffs cite to support their position — in reaching

its conclusion. See ECF No. [68-4] at 2. First, Cemex is factually distinguishable from the instant case.

There, the defendant sought to compel the plaintiff to designate its in-house counsel as a custodian; here,

Plaintiffs are seeking to designate Defendant’s chief executive and president as a custodian. Second — and

more importantly, the plaintiff in Cemex demonstrated to the court that the defendant’s in-house counsel

possessed unique discovery documents. See Cemex, 2018 WL 11455634, at *2 (“The undersigned finds

that it is probable that [] records [belonging to the plaintiff’s in-house counsel] contain responsive

documents. Notably, [a deponent] testified at his deposition that he consulted with [plainitff’s in-house

counsel] in 2014 regarding the alleged bootlegging scheme.”). As already discussed in the body of this

Order, Plaintiffs here failed to show that Ms. Veerasingham is in possession of unique discovery documents

— a finding that weighed heavily against granting the Second Motion to Compel.

CASE NO. 24-CV-20684-MOORE/Elfenbein

DONE and ORDERED in Chambers in Miami, Florida on October 3, 2024.

_ 4goy

—

MARTY FULGUEIRA ELFENBEIN

UNITED STATES MAGISTRATE JUDGE

cc: All Counsel of Record

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