No Request, No Motion to Compel

The Plaintiff in ADT Sec. Servs. v. Pinancle Sec., LLC, objected to a Magistrate Judge’s denial to a motion to compel to redo the Defendant’s search for responsive ESI.

The Plaintiff’s argued the Defendants failed to search individual employee computers and back-up tapes.

Additionally, the Plaintiff’s highlighted a considerable disparity between the volume of ESI produced by the Plaintiff verse the Defendant. ADT Sec. Servs. v. Pinancle Sec., LLC, 2012 U.S. Dist. LEXIS 98948 (N.D. Ill. July 11, 2012).

As such (in the Plaintiff’s argument), the disparity demonstrated the Defendant did not produce enough ESI, thus requiring additional searches.

Discovery Order to Conduct Additional Searches

The Magistrate Judge did not find any “legitimate basis for requiring Pinnacle to re-do its extensive ESI search” based on only a general assertion that documents must be missing. ADT Sec. Servs. at *6.

A motion to compel discovery should identify the responses that are inadequate and what information is necessary to make them adequate.  ADT Sec. Servs. at *5-6. The Plaintiff only made a general assertion that the searches were inadequate and thus the motion failed in a broad court order. Id.

However, the Magistrate Judge did issue a limited order to re-search seven employee computers, because there was evidence the computers might have contained ESI missing from the original production.  ADT Sec. Servs. at *6.

The District Court found the Magistrate Judge’s order was reasonable and not clearly erroneous or contrary to law, because the seven computers ordered to be searched were used by individuals whose correspondence had been specifically requested by the Plaintiff with specific search terms. ADT Sec. Servs. at *6.

Moreover, the Plaintiff’s motion to compel the search of 10 additional custodians with new search terms violated the principle that “…[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.” ADT Sec. Servs. at *7, citing Seventh Circuit Electronic Discovery Committee, Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (2010).

Based on the above, the Court found the Magistrate Judge’s order was not clearly erroneous or contrary to law. ADT Sec. Servs. at *7-8.

Bow Tie Thoughts

There are procedural horror stories of attorneys bringing motions to compel discovery without an underlining discovery request. Such motions should be denied, because you cannot have a motion to compel without first requesting specific discovery.

Discovery is not supposed to be a monkey throwing darts wildly, hoping one hits the target. However, there can be challenges in determining the relevant custodians, what to specifically request, and the sources of electronically stored information. These challenges can make the brightest lawyer feel like the dart throwing monkey.

There are situations when it comes to eDiscovery where motion practice can be justified. If a production is reviewed in software that shows relationships between email messages, additional custodians may be identified who were not included in the original production. This can easily result in supplemental discovery or possibly motion practice. Hopefully, there is a meet and confer and ESI that is responsive is produced without spending money on motion practice.


The False Declaration of Dismissal

How many times can a litigant ignore his discovery obligations before his misconduct catches up with him? The plaintiffs in this case failed to produce documents in response to a discovery request. Then they proceeded to violate not one but two judicial orders compelling production of the requested materials. After patiently affording the plaintiffs chance after chance, the district court eventually found the intransigence intolerable and dismissed the case as sanction. We affirm. Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.

Circuit Judge Neil Gorsuch,

Lee v. Max Int’l, LLC, 638 F.3d 1318 (10th Cir. Utah 2011)

Courts do not like parties failing to comply with discovery orders.  Judges really do not like false declarations.  Combine those actions together and you end up with a dismissal.

The Plaintiffs in Lee v. Max Int’l, LLC, engaged in discovery misconduct that included an inadequate document production that drove the Defendants to file a motion to compel.  A magistrate judge issued a discovery order to produce the requested material.  A limited amount of information was produced, driving the Defendants to the courthouse again.  Lee, at *2-3.

The magistrate judge stopped short of dismissing the case and ordered the Plaintiffs to produce the requested discovery.  Lee, at *3.

Some discovery was produced; along with a declaration stating all discovery had been produced.  Lee, at *3.

The production lacked certain requested information, such as specifically requested tax information, and the Defendants went back to court.  Lee, at *3.

As one can imagine, the magistrate judge was not happy to see the Plaintiffs did not follow two court orders.  Lee, at *3.

The magistrate recommended the Plaintiffs’ complaint be dismissed, which the District Court did.  An appeal followed. Lee, at *4.

The Court of Appeals had no sympathy for the Plaintiffs.  Moreover, the Court of Appeals noted that “district courts enjoy ‘very broad discretion to use sanctions where necessary to insure . . . that lawyers and parties . . . fulfill their high duty to insure the expeditious and sound management of the preparation of cases for trial.’” Lee, at *4, citing In re Baker, 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc).

The Court of Appeals recounted that the Plaintiffs had three chances to comply with the discovery requests.  First, was responding to the original request.  Second, after the first motion to compel. Finally, after the second motion to compel.  Lee, at *6-7. As the Court of Appeals explained:

[A] party’s thrice repeated failure to produce materials that have always been and remain within its control is strong evidence of willfulness and bad faith, and in any event is easily fault enough, we hold, to warrant dismissal or default judgment.

Lee, at *7.

However, there was another issue the bothered the Court of Appeals down to its core: A false declaration.

As the Court of Appeals explained:

Once the plaintiffs chose to declare — under penalty of perjury, no less — that their production of tax records was now compliant with the January 2010 order, the game was up. The court and defendants were entitled to take that sworn declaration to the bank, to rely upon it, to consider the matter closed. Yet, the plaintiffs produced the tax records only after Max uncovered the falsity of the declaration and only after Max was forced to file yet another motion concerning their production.

None of this should’ve been necessary. And none of this, in any reasonable sense, demonstrates “compliance” with the January 2010 order. Discovery is not supposed to be a shell game, where the hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered. 

Lee, at *11.

In the final analysis, the Court of Appeals found the District Court did not abuse its discretion in dismissing the Plaintiffs’ complaint.  Lee, at *15-16.

Bow Tie Thoughts

Few actions upset a court more than false declarations and failing to comply with court orders.  While courts prefer cases heard on their merits and loath issuing defaults, the threat of a default judgment is a very powerful sanction to ensure compliance with discovery responsibilities.

The $1.9 Million Price Tag on Undue Burden

The Plaintiffs in Thermal Design, Inc. v. Guardian Bldg. Prods., brought a motion to compel the Defendants “Defendants to search all archived e-mail accounts and shared network drives, without any restriction as to custodian or individual.”  Thermal Design, Inc. v. Guardian Bldg. Prods., 2011 U.S. Dist. LEXIS 50108 (E.D. Wis. Apr. 20, 2011).

The cost estimate:  $1.9 million, plus another 13 weeks of document review with an estimated cost of $600,000. Thermal Design, Inc., at *3.

The Defendants had already produced 91 Gigabytes of data (approximately 1.46 million pages) at a cost of $600,000 and seven months of work.  Thermal Design, Inc., at *2.

Federal Rule of Civil Rule 26(b)(2)(B) provides that a party “need not provide discovery of electronically discovered information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Thermal Design, Inc., at *3.

The Court looked at the $1.9 million price tag and held the additional searches of all “all archived e-mail accounts and shared network drives, without any restriction as to custodian or individual” to be unduly burdensome.  Thermal Design, Inc., at *3.

The Court also cited Federal Rule of Civil Procedure Rule 26(b)(2)(C), which allows for the production of ESI that is not reasonably accessible for good cause.  Thermal Design, Inc., at *4.  The production of discovery can be limited under Federal Rule of Civil Procedure Rule 26(b)(2)(C)(i-iii), which states a court must limit discovery “if it is unreasonably cumulative or duplicative, if the party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or if the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

The Plaintiffs argued more ESI needed to be produced because of the parties’ agreement on electronic discovery.  Thermal Design, Inc., at *4.  The Plaintiff also dismissed the Defendants’ undue burden arguments, claiming the Defendants had “considerable resources.” Id.

The Court bluntly rejected the “big checkbook” argument, stating:

This is simply not enough to establish good cause under the Federal Rules. Even if the information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence, Thermal Design doesn’t explain why the extensive amount of information it seeks is of such importance that it justifies imposing an extreme burden on the Guardian Defendants… Courts should not countenance fishing expeditions simply because the party resisting discovery can afford to comply.

Thermal Design, Inc., at *4-5.

Bow Tie Thoughts

Civil litigation will always have cases of overreaching in discovery.  The idea of searching all archived data, without any regard to custodians or date ranges, from a large corporation would seem extremely daunting.  Moreover, who would want to review millions of email messages, PowerPoints and other files?  The cost for such review can turn the merits of the lawsuit into a sideshow as the parties instead fight over discovery.

Additionally, if parties need to show good cause to overcome undue burden arguments, they need a detailed offer of proof to support their request.  In addition to arguing why the ESI is needed, countering the cost estimate is a good practice, especially if there are more cost effective ways to control the discovery costs.

A Search Term Turkey

In a Fair Labor Standards Case against Butterball, the Plaintiffs claimed the Defendants’ ESI production was incomplete.  The Defendants in turn claimed that the “burden” of producing the discovery was burdensome, justifying cost shifting.  Helmert, et al., v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010). 

While that sounds like a standard e-Discovery dispute, something was not right in the kitchen.  

Searching for the Right Recipe  

Search terms were an “iron chef-esq” battle in the case. 

The Defendants ran search terms over active and archived email databases of twenty-two custodians.  Helmert, at *4.  

The Plaintiffs sought to compel the Defendants to run an additional 70 search terms over forty-three custodians.  Helmert, at *9.  

The two sides debated and narrowed search terms across a significant portion of the opinion, with the number of custodians and search terms fluctuating.  

One element of the search term dispute was searching “Donning and Duffing” cases against one of the Defendants and its subsidiaries. Helmert, at *11.    

A Bad Taste in Your Mouth  

The Defendants made an argument that tasted like a turkey brine of tuna and sulfur in soda water: It was “impossible” to search email messages for more than one word in a sentence.  Helmert, at *13.  

The Court did find the Defendants needed to produce additional discovery, but added a big caveat: 

The Court does agree that, to the extent that it is impossible to conduct an electronic search of emails for one term within the same sentence as another term, requiring Butterball to do so would be unduly burdensome. The plaintiffs offer no evidence that Butterball can, in fact, perform such a search electronically. Nor do they offer any alternative method for conducting such a search. 

Helmert, at *14-15. 

The Plaintiffs did argue the Defendant could search for the first term and then run a second search as a “work around” to this technically “impossibility.”

A Burnt Turkey

The “impossibility” in this case was attempting to search active and archived email, not necessarily preserved ESI.

This raises the issue, just what sort of litigation hold had been enacted?  Was the data at all collected or were the Defendants searching over live and archived data the entire time?

If the data had been collected and preserved with any of several different collection tools, the “impossibility” would have faded away, instead of lingering like a burnt turkey.

One example of how this search could have been performed would have been by performing a Proximity Search with EnCase e-Discovery, which allows for a keyword search within a user defined proximity of other keywords. 

As explained by Alexis Robbins of Guidance Software, here is how the search would have been possible: 

EnCase® eDiscovery supports the ability to search multiple keywords within a sentence via its proximity search function. Proximity search allows for keyword search within a specified number (user defined) of keywords of another keyword. For example, with EnCase eDiscovery a user could enter a whole word search expression “Stock Option” and identify all instances of the words Stock and Option within a proximity (2) of each other. Proximity support is not with EnCase® Portable, at this time, which does straight keyword searching.

EnCase eDiscovery searching of “Stock” within two words of “Option”

Bow Tie Thoughts

Lawyers who are new to electronic discovery may assume things are “impossible.”  Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive. 

Consulting with a third-party expert, or even performing a Google search, may prove the “impossible” is actually a common practice in many situations.

This case likely would have saved time and money if the parties could have agreed on the key custodians, had a third-party preserve the data and then had an index which could be searched based on agreed upon keywords within the same sentence.  This could likely would have cost less than the protracted litigation, meet and confer conferences and a motion to compel battle. 

Don’t Bank on this Strategy to Compel Electronically Stored Information

The Court finds the parties could have avoided the expenses of this Motion by conferring appropriately early in the case about ESI.

United States Magistrate Judge Michael R. Merz, Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, 2009 U.S. Dist. LEXIS 70514 (S.D. Ohio July 24, 2009).

Banks really should cooperate on electronic discovery issues when they sue each other.

Gun DeckInstead, Wells Fargo and LaSalle exchanged broadsides over searching back-up tapes and spoliation claims very late in the litigation.  The Court denied the dueling motions and dressed down the parties for not conferring about ESI earlier in the case.

The Parties were bound by several scheduling orders, which included them conferring on the production of electronically stored information and a discovery cut-off date that was extended several times.  Wells Fargo Bank, N.A., 3-4.   

Plaintiff Wells Fargo Bank brought a motion to compel and sanctions motion against Defendant LaSalle Bank National.  The Court summarized the parties’ dispute as follows:

Essentially Wells Fargo contends that LaSalle did not search a number of backup tapes for relevant documents and should be subject to spoliation sanctions for not maintaining all of the backup tapes which might have contained responsive ESI. LaSalle responds that ESI on backup tapes is not readily accessible in that it would take six months and almost half a million dollars to restore the backup tapes. LaSalle counterpunchs by accusing Wells Fargo of the same sins — not producing documents from backup tapes, not placing a litigation hold on backups, etc. Wells Fargo Bank, N.A., 5.

The Court was less than thrilled with the Parties in this case not conferring on electronically stored information and starting an ESI grudge match four months after the close of discovery and two months before trial.  Wells Fargo Bank, N.A., 7. As the Court bluntly stated:

The current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one-paragraph boilerplate statements about ESI and waiting for the explosion later. Wells Fargo Bank, N.A., 6-7.

Sword FightThe Court found that restoring the back-up takes was “disproportionate to the likely utility of doing so.”  Wells Fargo Bank, N.A., 7.  Moreover, the cost of the restoration was out of proportion to the amount in controversy.  Wells Fargo Bank, N.A., 8.  Additionally, the Defendant’s practice of printing hard copies of “important” loan documents that had been produced in discovery made the chances of finding anything new remote.  Wells Fargo Bank, N.A., 8. 

The Court very curtly denied the Motion to Compel and Sanctions Motion.  Wells Fargo Bank, N.A., 8. 

Bow Tie Lessons

Electronically stored information must be addressed early in the lawsuit in the Rule 26(f) Conference, not on the eve of trial. 

The Court gave some practice pointers for having an effective meet and confer process by citing to the Sedona Conference Cooperation Proclamation.  The Court included the following six points to aid counsel on ESI matters:

1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;

2. Exchanging information of relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information;

3. Jointly developing automated search and retrieval methodologies to cull relevant information;

4. Promoting early identification of form or forms of production;

5. Developing case-long discovery budgets on proportionality principles; and

6. Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.

Wells Fargo Bank, N.A., 6, citing The Sedona Conference Cooperation Proclamation, July, 2008, available at 

As an old friend once said, “Bad news does not get better with age.”  Neither does ignoring electronically stored information until after the close of discovery.

When You Have Over 100 “Any and All” Requests for Production, Don’t Complain About Lots of Documents to Review

When, as here, broad discovery requests lead to relevant documents being mixed in with seemingly irrelevant documents, the fault lies just as much with the party who made the request as with the party who produced documents in response to the request.

District Court Judge Ted Stewart, Cmty. House, Inc. v. City of Boise, 2009 U.S. Dist. LEXIS 49501, 7-8 (D. Idaho June 12, 2009)

Broad discovery requests, discovery produced in the ordinary course of business, and privilege logs fill the story of Cmty. House, Inc. v. City of Boise, 2009 U.S. Dist. LEXIS 49501 (D. Idaho June 12, 2009). 

The Discovery Requests & Production

The Plaintiffs made two sets of discovery requests.  The Defendants responded to the first request without a written answer, but instead produced 5 boxes of documents and 7 CDs with scans of the documents.  Cmty. House, Inc., 1-3.  The Defendants claimed the documents were produced as they were kept in the ordinary course of business. 

Second Set of Production Requests

Route 66The Plaintiffs made an additional 66 requests for production.  The requests included broad, boilerplate language for “any and all” documents across the Defendants’ document universe.    Cmty. House, Inc., 3. 

The Defendants produced 21 boxes of documents.  The documents were Bates-stamped and written responses.  The Defendants also included an index for each box.  Cmty. House, Inc., 3. 

The Privilege Log

The Defendants produced a Privilege Log identifying nearly 300 documents.  Cmty. House, Inc., 3. 

The Privilege Log contained the following information for the claimed privilege documents:

(1) Bates number, where applicable;

(2) The box number in which it would have been contained;

(3) The number of pages in the document;

(4) The date the document was authored;

(5) The author and recipient(s) of the document;

(6) Brief description of the document; and

(7) Claimed privilege.

 Cmty. House, Inc., 3-4.

The Plaintiffs’ Attack: Failed Forms of Production & Ineffective Privilege Logs

The Plaintiffs claimed the Defendants’ form of production was not responsive to the Plaintiffs’ requests, because the “Defendants failed to organize the documents produced by either topic or request number.”  Cmty. House, Inc., 4.

RedactedThe Plaintiffs also alleged unethical conduct, because the “Defendants intentionally hid relevant documents in the middle of unrelated irrelevant documents.” Cmty. House, Inc., 4.

The Plaintiffs issued a blanket claim the privilege log was insufficient and that the court review ALL of the documents in camera (which would be 26 boxes and 7 CDs).  Cmty. House, Inc., 4.


The Document Production: Rule 34(b)(2)

The Plaintiffs argued the production failed because the Defendants did not “organize or provide specific responses” to the requests.  Cmty. House, Inc., 5. 

The Plaintiffs based their arguments on Federal Rules of Civil Procedure Rule 34(b)(2), which “requires a party to answer a discovery request within thirty days and respond to each item or category.”  Cmty. House, Inc., 5. 

The Mechanics of Rule 34(b)

Federal Rule of Civil Procedure Rule 34(b)(2)(A) requires a producing party to respond “in writing” to a Rule 34 request.  Cmty. House, Inc., 5.  The Defendants did respond to the production request, however they did not produce a written response.  Id.

Pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(B), a producing party must state for request whether they are producing responsive documents or objecting.  Cmty. House, Inc., 5-6.

The First Request

The Court ordered the Defendants to respond in writing to the Plaintiffs’ request for production.  Simply producing 5 boxes of documents without a written response does not meet a producing party’s discovery obligations.  Cmty. House, Inc., 5-6. This arguably would not comply with Federal Rule of Civil Procedure Rule 26(g), that a production was “complete and correct as of the time it was made.” 

The Second Request

DocumentsThe Plaintiffs claimed the Defendants engaged in “hide the document” gamesmanship by producing an additional 21 boxes of paper.  Cmty. House, Inc.6-7. 

The Court did not agree. 

The Plaintiffs requests were a broad net that would catch relevant case documents, but were also likely non-responsive.  Cmty. House, Inc. 6-7.

Moreover, considering the Plaintiffs had over 100 broad discovery requests, 26 boxes of documents was not an unreasonable production.  Cmty. House, Inc., 7.

Were the Defendants Required to Re-Organize their Productions?

The Court did not require the Defendants to reorganize their production.  Cmty. House, Inc., 8-9.

Rule 34(b)(2)(E)(i) states:

A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

The Defendants produced the documents as they were maintained in the ordinary course of business, which is what they were required to do pursuant to Rule 34(b)(2)(E)(i).  Additionally, the 21 box production was labeled and organized enough to comply with Rule 34(b)(2)(E)(i).  Cmty. House, Inc., 8. 

The Privilege Log

ConfidentialPrivilege Logs are defined in Fed. R. Civ. P. 26(b)(5)(A), which requires a privilege log to “describe the nature of the documents . . . in a manner that, without revealing information itself privileged or protected will enable other parties to assess the claim.” Cmty. House, Inc., 9.

A party has met their initial burden claiming a privilege once they have complied with the requirements of Fed. R. Civ. P. 26(b)(5)(A). Cmty. House, Inc., 9-10.

The Court held the Defendants’ privilege log was sufficient.  Cmty. House, Inc., 10.  The privilege log combined with the list of city employees matched with responsibilities, gave the Plaintiffs the able to access whether a privilege attached to any of the documents.

Bow Tie Thoughts

I thought it a little strange that someone would have such a large number of paper documents, given the high use of computers in generating letters, memos and email since the mid 1990s.  I can guess the City might have had blue prints or construction documents that might have been never in a digital format, but the facts of the case do not say.  Keeping ESI as electronically stored information is cheaper then printing it as paper.

Producing paper documents, such as letters or reports, as paper may drive up discovery costs, because scanning paper to paper incurs a greater cost then scanning paper to TIFF or PDF with searchable text.  

Optical Character Recognition (OCR) works only on typed documents (while ATM’s can OCR handwriting on checks, I have not heard of a litigation OCR engine reading handwriting yet).  Whether or not these documents were letters, memos or something with typed text is unknown, but OCR-ing the documents would make them “searchable,” depending on the quality of the scans.