Discovery Errors Do Not Necessitate Wholesale Re-Production

Why This Alert Is Important

This ruling highlights that errors in electronically stored information (ESI) productions don't always necessitate the court's strongest sanctions or a complete redo of the production process.

Overview

In the context of this whistleblower suit, the relator asserted that defendants' efforts to produce documents were “woefully deficient” for several reasons: 

• Neglecting to conduct a thorough search of a shared drive utilized by an actuarial team; 
• Producing documents from a former employee only shortly before his deposition; and 
• Failing to provide certain audit reports, key work instructions, and other documents. 

In response to allegations of deficiencies in their ESI productions, defendants provided detailed explanations about their processes for locating and producing relevant documents from shared drive locations. They indicated that their approach involved consultations with employees, in-house counsel, and IT personnel, centered around the specific requests made by the relator. However, defendants acknowledged that some documents, which were inadvertently omitted during their initial review, had since been discovered and produced. 

Despite these explanations, the relator remained dissatisfied, arguing that the defendants' productions were inadequate and compromised the relator’s ability to effectively prosecute the case. The relator requested a complete rerun of the document collection and review process using a neutral third-party vendor, pointing to the significant impact of the errors on case preparation. While the defendants conceded to making some errors, they claimed these errors were minimal and did not significantly prejudice the relator. After relator raised these production issues, defendants also learned that over 45,000 documents that should have been reviewed were overlooked partly due to a typographical error in the applied search terms. 
 

Ruling Summary

• Assessment of Errors The special discovery master found multiple errors and gaps in defendants’ ESI production efforts but concluded these were not significant enough to warrant a complete redo of the process. By way of explanation, “a party responding to discovery requests is not required to achieve perfection in its efforts to locate and produce every relevant document in its possession;” rather it must “conduct a diligent search, which involves developing a reasonably comprehensive search strategy.
• Requirements for Additional Production While "the right and responsibility to determine the parameters for searching ESI and other document sources lie initially with the responding party," the opposing party must show the respondent “either withheld relevant documents or failed to conduct a reasonable search” to justify a broad re-do of production efforts. The special discovery master found that despite “multiple errors and gaps in defendants’ document production efforts,” the defendants’ entire document production process was not so flawed as to require being redone from scratch. 
• Transparency in Process Paramount While a wholesale redo of production was unnecessary, there were "sufficient specific deficiencies to warrant defendants’ disclosure of additional information regarding the specifics of their process to ensure that they ha[d] conducted a reasonably comprehensive collection, review, and production process." This need for transparency required defendants to detail their document collection, review, and production process, including an audit of the vendor’s work and any identified issues. The special discovery master noted that, under the local and federal rules, "the primary means of addressing such errors is the meet-and-confer process, i.e., a good-faith attempt by the requesting party to obtain the missing discovery.

Case Law Tip

The courts don’t expect e-discovery professionals to be perfect, but they do expect collaboration and cooperation. Review Exterro’s guide to the FRCP if you’d like a refresher.