Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—D.P.R.: EEOC may compel supervised employer document searches, forensic employee manual inspection, (Sep 3, 2026)

By Kathleen Kapusta, J.D.

“What the Court has before it is a dispute about whether it should permit the EEOC to conduct ‘discovery about discovery.’”

Granting in part and denying in part the EEOC’s motion to compel and to reopen discovery in a sexual harassment suit brought on behalf of pharmacy employee who alleged she had been sexually harassed and assaulted by a manager, who was also the owner’s nephew, a federal court in Puerto Rico found the EEOC was entitled to search for responsive documents in a newly revealed “Central Office” location but was not entitled to conduct a forensic inspection of the manager’s or owner’s phones. The court, however, granted the EEOC’s alternative request to compel the defendants, three related pharmaceutical companies, to run supervised searches for responsive documents. It also granted the agency’s request to reopen discovery to permit it explore the origin of a revised version of the defendants’ employee manual that was produced after the discovery deadline (EEOC v. Yas Caribe, Inc. dba Farmacia Carimas , No. 24-1449 (ADC) (D.P.R. Sept. 2, 2026)).

Discovery disputes. During discovery, the EEOC propounded several requests for production of documents and interrogatory responses. Unsatisfied with the defendants’ responses, the EEOC moved to compel production. The defendants maintained most of their objections but also stated their willingness to supplement their production and responses to several compelled requests.

A second discovery dispute arose when the EEOC moved to reopen discovery as to the defendants’ employee manual, which was disclosed after the close of discovery and included the owner as “a point of contact and telephone number for complaints of sexual harassment,” which could support one of the defendants’ affirmative defenses. The EEOC also requested a targeted forensic inspection of relevant computer systems and custodians.

Sufficiency of self-collection efforts. The EEOC argued that the defendants’ attempt to comply with their discovery obligations was deficient because they did not adequately search for responsive documents. In support, it pointed to the owner’s deposition testimony that “he had not reviewed his own electronic email or text messages or the electronic devices of relevant custodians, including [the manager], the alleged harasser, for responsive documents. Nor had he directed any of his employees to do so.” His testimony, according to the EEOC, also revealed that relevant personnel files and employment-related documents might be stored in the offices of a non-party entity, referred to as the “Central Office,” which was owned and operated by the owner.

Arguing that this cast serious doubt on the veracity of the defendants’ discovery responses, the EEOC requested that the defendants amend all of their responses to provide specified information and that the owner and manager turn over their phones for forensic inspection or alternatively, that the defendants be compelled to conduct specific searches for responsive documents and ESI.

Discovery about discovery. Noting that this was a “dispute about whether it should permit the EEOC to conduct ‘discovery about discovery,’” the court observed that “district courts within the First Circuit have addressed similar disputes under the relevance and proportionality factors.” After reviewing guidance from its sister courts, the court here explained that it would evaluate the EEOC’s requests for discovery on the sufficiency of the defendants’ responses based on their relevance and proportionality with due consideration of the defendants’ privacy concerns.

Job descriptions. Turning to the EEOC’s request for the production of documents with job descriptions for any position held by the owner, the manager, and the employee, among others, the court noted that the defendants’ initial response was to provide a laconic description of the individuals’ respective job duties and the employee’s employment application and payroll information. The EEOC argued that based on the owner’s subsequent deposition testimony revealed that personnel files and employment-related documents are kept in a previously undisclosed “Central Office” location and that responsive documents could still be outstanding.

Finding the EEOC sought relevant information, the court noted that it alleged the defendants subjected the employee to a hostile work environment and constructively discharged her after an incident involving the manager and that she was never instructed on how to report incidents of sexual harassment despite the defendants having in place a written anti-harassment policy and reporting procedure that named an employee and family member as the person to whom they should be reported.

The owner, in his deposition however, revealed that particular family member did not work for the defendants while the employee was employed and the revised manual showed the owner as the point of contact. The EEOC also argued that all three defendants were liable on an integrated enterprise theory. Granting the EEOC’s motion as to these documents, the court found the defendants’ assertion that no such documents exist was called into serious doubt by the revelation of the existence of a “Central Office” and the absence of a direct representation by the defendants that this location was searched for responsive documents.

Communications and forensic searches. The EEOC also sought the defendants’ communications relating or referring to the employee, her allegations of sexual harassment, the protective order she sought, her termination, her EEOC charge, or any complaint of harassment against the manager. It also sought a forensic inspection of the owner’s and manager’s phones or a supervised search of them.

Here, the court found that the defendants’ initially deficient response to the document request and the owner’s deposition testimony as to the inadequacy of his search raised substantial doubts as to their compliance with their discovery obligations. Further, said the court, the EEOC provided reasonable search terms for the defendants to run in their electronic devices and the defendants did not describe what, if any, terms they used to find responsive documents.

Attorney supervision. While the defendants’ attorney argued that being with a witness searching for requested records was sufficient and an attorney’s active search for those records would make the attorney a potential witness, the court observed that “neither supervising nor assisting a clients’ document search converts an attorney into a witness in a case.” Indeed, the court continued, “the existence, relevance, and discoverability of ESI is one such circumstance that counsels in favor of attorneys exercising diligent supervision over their clients’ efforts to comply with discovery requests.”

Finding supervision here objectively warranted, the court again noted the owner’s testimony that he did not perform an adequate search for responsive documents, even when his attorney represented that he was “with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has . . . .” The attorney, said the court, should at the very least have inquired into how and where the searches were being made so that he could give a reasonably informed certification of the thoroughness of what sources were and were not searched.

Proportionality. Despite this, said the court, discovery must be proportionate and a forensic inspection of the owner’s and manager’s cellphones carried with it the risk of intrusion into private matters falling outside the scope of discovery. Further, the burden imposed by such inspection would likely outweigh its benefits. “While there is certainly a well-founded suspicion that an adequate search was not carried out, and that defendants thus failed to comply with their discovery obligations, that does not necessarily mean that defendants are withholding responsive documents,” the court explained, noting that there was no indication they willfully withheld responsive documents or engaged in spoliation, only that they did not adequately search for documents that may exist relating to the alleged sexual harassment incident.

While the court denied the EEOC’s forensic inspection request, it granted the agency’s alternative request to compel the defendants to run supervised searches for responsive documents.

Request to reopen discovery. Addressing finally the EEOC’s request to reopen discovery to allow it to explore the origin of the revised version of the employee manual that was produced after the discovery deadline, the court observed that the existence of the revised manual should have been previously disclosed and promptly produced. Moreover, said the court, the owner’s “lack of certainty as to the circumstances surrounding the revision casts doubt over whether it was in place at the relevant time or, at its worst, whether it is a recent fabrication. And the emergence of this document, whatever its weight, prejudices the EEOC’s case.”

Here, the court found a forensic inspection was appropriate as there was only one document at issue, the revised manual, and the open question was the date of its creation, and to a lesser extent, who created it. Thus, said the court, an inspection limited to searching for documents or ESI tending to establish when and by whom the revised employee manual was created was relevant and proportionate.

The case is No. 24-1449 (ADC).

Judge: Delgado-Colon, A.

Attorneys: Gabriel O. Mondino for the EEOC. Vladimir Mihailovich-Nikolich (Law Offices of Vladimir Mihailovich-Nikolich) for Yas Caribe Inc. d/b/a Farmacia Carimas, Interamerican Unlimited Drug Inc. d/b/a Farmacia Carimas 2, and Al-Teen, Corp. d/b/a Farmacia Carimas 3.

Companies: Yas Caribe Inc.; Farmacia Carimas; Interamerican Unlimited Drug Inc.; Farmacia Carimas 2; Al-Teen, Corp.; Farmacia Carimas 3

Cases: EvidenceDiscovery SexualHarassment PuertoRicoNews