eDiscovery Daily Blog

Court Denies Defendant’s Request for Deposition Regarding Plaintiff’s Discovery Search Tools – eDiscovery Case Law

In Koninklijke Philips N.V. v. Hunt Control Sys., Inc., 11-3684 (DMC) (D.N.J. Apr. 16, 2014), New Jersey Magistrate Judge James B. Clark III granted the plaintiff’s protective order to prevent the defendant from proceeding with a new deposition to review whether the plaintiff had used “appropriate search tools for ESI discovery,” after the requested discovery documents had already been produced.

This instant action on an intellectual property dispute concerned the defendant’s reissuance of a Notice of Deposition pursuant to Fed.R.Civ.P. 30(b)(6) for the plaintiff’s IT representative, who had already given a deposition that had been stayed by a previous court when the defendant sought to request responses from the plaintiff to eight questions “that [defendant] alleges were not adequately answered” by the IT representative. The plaintiff objected to the reissued notice during a conference, and was granted leave to file for a protective order.

The defendant claimed that the plaintiff’s discovery production was materially deficient, and outlined seven categories of documents which it alleged were missing documents, returning low portions of requested documents, or not produced at all. In support of the 30(b)(6) deposition request, the defendant submitted declarations from its IT expert which stated in part that “due to its cloud-based IT structure, [plaintiff] has available to it some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools” and yet the plaintiff “refuses to use these tools to satisfy its obligations.”  The defendant claimed that it was “entitled to the deposition to understand why and how these sophisticated tools are somehow inappropriate in spite of their clear design to accommodate eDiscovery.”

In response, the plaintiff contended that the deposition was initially stayed pending the plaintiff’s response to the eight questions the defendant claimed were not adequately answered, and not pending the defendant’s review of the plaintiff’s discovery production. It was noted that the previous court invited the defendant to “reapply” for a deposition once both parties had “met and conferred in good faith” regarding discovery, yet the defendant had simply re-noticed the deposition. The plaintiff also submitted a declaration from its IT expert, confirming that the plaintiff had answered the eight questions adequately, and that “a custodian-based approach to collecting ESI” was its usual method of discovery production.

The plaintiff requested the protective order blocking the deposition because the ESI production approach described by the defendant would be unduly burdensome, noting that its current contract with its outsourced IT provider “neither includes, contemplates, nor currently permits the type of searching and collection that [defendant] suggest[s].” Further declarations submitted by the plaintiff attested to the reasonableness of its approach to ESI production.

Judge Clark based the ultimate ruling on this motion on legal standards set forth by Federal Rule of Civil Procedure 26, which governs the scope of discovery in federal litigation and requires in part that discovery scope be limited where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” and where “the burden or expense of the proposed discovery outweighs its likely benefit.”

In reviewing the arguments from both sides, Judge Clark found that the plaintiff had adequately represented the reasonableness of its approach to ESI discovery and production, that it had demonstrated that several categories of the defendant’s claims of deficient production were “speculative and suggestive in nature,” and that the defendant had failed to demonstrate that “the benefits of the deposition would likely outweigh the burden associated with it.” In fact, the proposed deposition had “the potential to cause tremendous burden” to the plaintiff. Therefore, the plaintiff’s motion for a protective order was granted.

So, what do you think? Was the defendant’s request unduly burdensome or should they have been granted the second deposition? Please share any comments you might have or if you’d like to know more about a particular topic.

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