Don't Forget the Rules Can Protect Both Parties During Discovery

There can be some sanity when it comes to electronic discovery.  Here’s a recent example of where a party requesting electronic discovery went too far, and paid the price.

In CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. Aug. 7, 2008) (click here), the plaintiff previously filed an emergency motion to compel production of discovery, which the court had granted in part, but only on the condition that the plaintiff pay the defendant $300,000 as the costs of defendant conducting a privilege review of the requested materials.  The defendant filed a cross-motion seeking additional cost-shifting and attorneys’ fees related to the discover dispute raised by the plaintiff.

As the court summarized the situation, the plaintiff’s discovery requests “essentially called for every document at [defendant] that deals with the accused products in this case, which meant, in effect, every document in the company.”  Id. at *1.  The briefing on the discovery dispute stretched to 212 pages, with 147 exhibits.  In moving to compel, the plaintiff “made no effort either in meet-and-confer sessions or in its Emergency Motion to identify specific categories of documents that were relevant and not being provided,” and “engaged in no substantive discussion whatsoever about what discovery it really needed or why.”  Id.  The defendant actually had substantially completed production of the requested discovery less than two weeks after the deadline plaintiff sought to impose by his motion, which “included the production in native format of over 1.4 million documents that were produced as result of electronic searching that was performed by [defendant] based on 102 search terms that were ultimately selected by Plaintiff.”  Id. at *2. 

The plaintiff “filled the record with invective in both challenging the motives of [defendant] with respect to allegedly delaying discovery and challenging the honesty of [defendant’s] counsel with respect to their representations to the Court.”  Id.  Because of those allegations, the court reviewed hundreds of pages of e-mails, letters and other documents submitted with the briefs, and found that “based on its review of this entire record, Plaintiff's accusations that there had been a long campaign of stonewalling, delaying, and lying by [defendant’s] attorneys are just not true.”  Id. In particular, the court flat out rejected plaintiff’s accusation that it was the defendant which selected the electronic discovery search terms, rather than the plaintiff, finding plaintiff’s representation “extremely disturbing.”  Id. at *3. 

Based on all of that, the court held under Rule 37 that plaintiff was required to reimburse the defendant for 75% of its fees in responding to the discovery motion, which led to an award of over $86,000 in fees for the defendant.

Sometimes it may seem like no one is listening when a party responding to requests for electronic discovery complains about the burdens and costs involved, in relation to the potential relevance of what is being requested.  But at least in this case, the judge seems to have taken the time to dig into the dispute to prevent further abuse.