If Production is Small, Does that Mean ESI is Being Withheld? – eDiscovery Case Law

By: Doug Austin

In American Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270 (D. Neb. Sept. 11, 2013), Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

The case arose from the sale of some raw beef trim by defendant (GOPAC) to the plaintiffs (Cargill), which the plaintiffs claimed was contaminated with the bacterium known as “E. coli 0157:H7.”  The defendants filed a counterclaim related to a New York Times article that allegedly contained false information supplied by the plaintiffs that caused the defendants to lose existing and potential customers.

Among the issues addressed in this ruling was a motion to compel from the plaintiffs for “the production of e-mails and other electronically stored information that have allegedly been withheld”.  Regarding the motion, Judge Strom noted that the plaintiff “has failed to identify a specific e-mail or electronic record that GOPAC is refusing to produce. Rather, Cargill argues that the small number of e-mails produced (25) evidences a lack of diligence in production.”  With regard to the size of the production, Judge Strom stated that “the Court cannot compel the production of information that does not exist.”

The defendant provided assurances that it had turned over all ESI that its searches produced and continues to supplement as it finds additional information, offering to search available sources using search terms provided by the plaintiff, but the plaintiff “has refused to supply any additional terms”.

So, Judge Strom gave the defendant a chance to show the extent of its discovery efforts, as follows:

“It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.”

Judge Strom gave the defendant until September 30 to disclose its sources and search terms.  Perhaps more to come…

So, what do you think?  Should the judge have done more or was this an appropriate first step?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

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Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

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Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at jane@litigationbestpractices.com.

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