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Case Law Alert: Inadequate Searches for Responsive Data Lead to Sanctions

Created on November 19, 2021


Vice President, E-Discovery

Under the FRCP, a party has the duty to conduct a reasonable inquiry to find responsive data in e-discovery. If you fail to take this duty seriously, as happened in Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (N.D. Ind. July 12, 2021) the court will ask you to go back and do it again, and you may be forced to pay opposing party costs in seeking compliance.

Overview

In this breach of contract case, the plaintiff moved to compel document and metadata production based on irregularities and inconsistencies in the original production that raised doubts about whether the defendant’s original search for responsive data was reasonable and sufficient.

During discovery, the plaintiff contended that the defendant failed to include all relevant metadata and, in some cases, produced incorrect metadata. The defendant argued that producing some documents in PDF form was adequate, since the documents were maintained as PDFs during the ordinary course of business.

Additionally, the plaintiff argued that the defendant failed to produce some responsive emails. The defendant claimed that the request for these documents was overly burdensome, and that the plaintiff had access to these documents outside the discovery process.

The two sides tried numerous times to meet and confer without any success at resolving this issue. Based on this disagreement, the plaintiff filed their motion to compel production.

Ruling

  • Omitted Documents. Due to the defendant initially failing to raise undue burden objections related to the omitted documents, and the fact that the plaintiff, in the magistrate judge’s eyes, didn’t have access to documents outside the discovery process (due to a cease-and-desist letter from the defendant), the court ordered the defendant to produce responsive documents and file an affidavit establishing that they took reasonable steps to find them.
  • Inconsistencies in Production. The plaintiff’s second claim was that not all responsive emails were produced, based on inconsistencies in email subject lines. The court agreed and ordered the defendant to “conduct a search of all depositories of electronic information in which one may reasonably expect to find” responsive documents.
  • Metadata. The court ruled that a party cannot simply ignore a request for metadata and that the plaintiff’s request was reasonable, because the metadata’s purpose was to link documents together. The court again granted the plaintiff’s request.

Expert Opinion by David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

Courts strongly prefer for parties to cooperate in discovery. When a party is deemed to have fallen short, Judges will order compliance and may award fees. This opinion also reminds that discovery objections, including burdensomeness and lack of relevance, must be raised in initial discovery responses or will be waived.

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.