U.S. Equal Employment Opportunity Commission v. Yas Caribe, Inc., No. 24-1449 (ADC), District of Puerto Rico (September 2, 2026), full opinion (PDF)
Defense counsel told a federal court that supervising his client's search for responsive documents would make him a potential witness. He was opposing a motion to compel in a Title VII case. The District of Puerto Rico rejected the argument on September 2 and placed the duty to know how a client searched on the lawyer who signs the response. The court then declined, for the time being, to order the forensic imaging the EEOC wanted, because nothing showed the defendants had withheld documents.
What happened
The EEOC sued three pharmacies operating under the Farmacia Carimas name, alleging that the manager of all three subjected an employee to a hostile work environment. During discovery the EEOC argued that the defendants had never adequately searched for responsive documents. The owner testified at his deposition that he had never reviewed his own email or text messages for responsive material. He had not reviewed the alleged harasser's devices either. He had not asked any employee to search.
The EEOC asked the court to order forensic images of the owner's and the manager's cellphones. In the alternative it asked that the defendants be compelled to run specific searches themselves. Defense counsel answered that he had already been present while a witness looked for records. Going further, he argued, would make him a witness. He called that step ethically inappropriate.
The court's analysis
Supervising or assisting a client's document search does not turn the attorney into a witness, the court stated. In some circumstances, it added, that supervision is required. An attorney need not oversee every part of a production. The responsibility, on the standard the court applied, is to coordinate the client's efforts so that responsive documents are located and produced.
Where a discovery request reaches a party's cellphones and computer systems, the court reasoned, counsel cannot rest on the client's word alone. Such a request obliges the attorney at a minimum to "understand how a client stores and uses ESI and how and where the client is searching for responsive documents." Counsel's own account of his involvement fell short of that. He should have asked how and where the searches were being run, the court stated. Only then could his certification of which sources had been covered be an informed one. That certification is the one Rule 26(g) requires counsel to sign on a discovery response. A failure to adequately guide and supervise a client's search for responsive ESI, the court stated, may run afoul of that rule.
The court's doubts about the search did not get the EEOC the imaging it had asked for. Imaging the two cellphones would not be proportionate, the court concluded, because it risked reaching private matters outside the scope of discovery for a benefit unlikely to justify the burden. A well-founded suspicion that the search was inadequate did not necessarily mean the defendants were withholding documents, the court reasoned. The court stated there was "no indication that, as of today, defendants have willfully withheld responsive documents or incurred in spoliation", only that the defendants had not adequately searched. So it took forensic inspection off the table for now and granted the alternative. The court ordered attorney-supervised searches of the two cellphones. The court also ordered one of the three pharmacies to search the phones and email accounts of the employees the EEOC identified as having human resources functions.
One request for forensic inspection did succeed. The defendants had produced a revised employee manual after the discovery deadline. The EEOC argued that the date the manual was created may support one of the defendants' affirmative defenses. Only one document was at issue, the court stated. The court concluded that an inspection limited to when and by whom the manual was created was relevant and proportionate. The parties were ordered to negotiate a protocol and to agree on a third party to conduct the search. Even so, the court reserved the option of excluding the manual from evidence instead of ordering the inspection.
Why it matters
The Rule 26(g) signature is where an uninformed search stops being the client's problem. A lawyer who cannot say how a client searched cannot certify what the client produced, however confident the client is that nothing exists. The answer to a client who would rather search alone is that supervising the search does not make counsel a witness. What supervision creates is a record of the search, which is the thing the defendants here could not produce.
The court's distinction also matters to anyone briefing an imaging motion. Doubt about the adequacy of an opponent's search bought the EEOC supervised searches rather than the images it wanted, because the court saw no sign that documents were being withheld. The court allowed an inspection of one document only, limited to when and by whom it was created.
The full opinion is available as a PDF.
