Case Law Alert: Don't Ask for Everything in E-Discovery...
In Santana v. MKA2 Enterprises, Inc. (D. Kan. Jan. 8, 2019), the courts reminded litigants that an appropriately tailored production request doesn’t ask for “all” of anything. When making such requests, be sure to ask for specific data. If you do ask for “all” of something, make sure you have case precedents or a clearly defined reason for doing so.
In this employment race discrimination case, the defendant moved to compel the plaintiff to produce “all” his mobile phones.
Specifically, the defendant wanted any mobile phone used by the plaintiff from the start of the defendant’s employment for “inspection and copying.”
The plaintiff objected because he argued the request would produce irrelevant information and would be unduly burdensome on him.
- Defendant’s Motion Rejected. The court ruled that defendant’s request was too broad stating, “Defendant sets out no protocol or process through which the data it deems responsive would be culled from the copy or image of the phone(s) and any responsive and/or privileged data removed or protected.”
- Alternative Solution. The court proposed that another request by the defendant for text messages would be a more appropriate, less intrusive measure for obtaining relevant mobile phone data.
- No Supporting Evidence. The defendant offered no case precedents for collecting an entire mobile phone for inspection within discovery. Additionally, the plaintiff had shown no signs of providing “incomplete and inconsistent responses to production requests.”
Expert Analysis from Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper
The December 2015 amendments to the Federal Rules clarified the duty to respond to discovery requests without using boilerplate (Rule 34(b)(2)). Rule 34(b)(1) dealing with the contents of discovery requests was not changed, but overbroad requests will not result in production. There may be rare cases where imaging of a party’s cell phone may be appropriate, but this was not such a case. While text messages were at issue, the plaintiff had already produced them, so there was no need to image the phone, which contained personal and irrelevant information. Requests need to be targeted to what is relevant and proportional; if the request instead is over broad, it will be denied.
Case Law Tip
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