eDiscovery Daily Blog

• April 26, 2018

In Cen Com, Inc. v. Numerex Corp., No. C17-0560 RSM, (W.D. Wash., April 11, 2018), Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Case Background

A request for discovery was issued by the Defendant for the founder and owner of the Plaintiff, along with two current employees of the Plaintiff, all of whom were former employees of the Defendant. The plaintiffs objected to the subpoenas “on the basis that it was an improper attempt to obtain discovery from a party employee,” and “that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information.”

The Defendant also filed a motion to compel the Plaintiff to use specific electronic search terms (“attorney w/2 general” and “consent w/2 decree”) related to a 2012 consent decree that Plaintiff entered into with Washington State’s Attorney General. The Plaintiff objected to the search terms regarding the consent decree as irrelevant.

As part of a counterclaim, the Plaintiff requested sanctions against the Defendant, claiming they withheld certain documents because of a pending motion for protective order, which was later denied by the Court. However, the Plaintiff continued to seek sanctions for the time period that it alleges Defendants were not in compliance with the stipulated ESI Order.

Judge’s Ruling

In Judge Martinez’s ruling, all of the Defendants’ motions were granted. Regarding the scope and relevance of the discovery request, it was noted that the Plaintiff was basing their refusal to comply on the former FRCP Rule 26 standard and not in line with the current version of Rule 26, which states discovery must be relevant to the claim and proportional to the needs of the case, while taking into account the parties’ access to relevant information and available resources, the importance of the discovery in resolving the matter, and whether the burden or expense of discovery outweighs its likely benefit.

Additionally, under Rule 37, “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Here the Plaintiff failed to explain specifically why the documents are not relevant, or that a search of the documents would be unduly burdensome, and instead only made the blanket statement that the documents sought “do not concern this matter and could not lead to relevant information.”

In regard to the Plaintiff’s counterclaim, Judge Martinez denied the motion for sanctions, citing Rule 37(d)(2): “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

So, what do you think?  Was the ruling correct or were the Defendant’s requests “overly burdensome”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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