Court Denies Sanctions, 'Discovery on Discovery' Once Defendant Provides Basic Litigation Hold Details

In Brown v. West Corp., 8:11CV284, 2013 U.S. Dist. LEXIS 170966 (D. Neb. Dec. 4, 2013), after having previously ordered the defendant to provide discovery on their litigation hold process and efforts to search for relevant ESI, U.S. District Court Judge Lyle E. Strom denied sanctions (including more ‘discovery on discovery’), holding that the defendant had provided “sufficient evidence” related to its “preservation and search protocols.”  Even though the defendant had not “explicitly touched on every item” the court had previously ordered it to detail, the court held that the defendant’s three-page letter listing the general categories of documents identified for preservation, the personnel receiving the hold, the steps taken to identify relevant ESI, and with respect to e-mail, a short affidavit describing the effort expended to cull, search and review e-mail content, was sufficient explanation of the defendant’s overall discovery process.  The court also refused to overturn the assigned magistrate’s order denying, on the basis of proportionality, document discovery of additional custodians and search terms found to be marginally relevant, at best, to the facts of the matter.

In adjudicating a prior motion to compel (Brown v. West Corp., 287 F.R.D. 494 (D. Neb. 2012)), the court had “directed the defendant to provide sufficient evidence to overcome some concerns the Court had regarding its preservation and search protocols.”  The defendant responded by issuing a letter listing hold recipients, document categories listed therein, steps taken to audit compliance with the hold, steps taken to collect relevant ESI (including securing a departing employee’s computer), adjustments and expansions to the scope of collection following receipt of Plaintiff’s discovery requests, and (generally) the defendant’s ESI searching capabilities and constraints.  The letter included an affidavit explaining how e-mail of relevant custodians was culled using keywords, reviewed for responsiveness and relevance, and then produced in electronic format.  The court held that these meet-and-confer efforts were sufficient to “address[] the substance of the court’s concerns by explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.”  Its prior order notwithstanding, the court also described as “questionable” the “contention that the law places an independent burden on the responding party to provide [discovery on discovery]” absent “reason to question whether a proper search [for relevant ESI] was conducted.”

The court also refused to overturn the magistrate judge’s recent order denying expansion of discovery scope to include additional custodians and search terms.  The magistrate had ruled (Brown v. West Corp., 2013 U.S. Dist. LEXIS 116278 (D. Neb. Aug. 16, 2013)) that the plaintiff’s “[m]ere speculation” that the additional information sought “might be useful will not suffice”; rather, the plaintiff needed to describe the information sought and its significance with “a reasonable degree of specificity.”  The magistrate had noted that without factual support or argument beyond, for instance, that particular individuals had “worked with the plaintiff,” any alleged relevance would be speculative at best, and would not justify the “substantial expense” of additional ESI searches as opposed to “pointed discovery such as depositions of the individuals themselves.”  The court agreed with the magistrate’s conclusions, reminding the plaintiff that “some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.”

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