eDiscovery Daily Blog

• October 6, 2017

In Blosser v. Ashcroft, Inc., et al., No. C17-5243 BHS (W.D. Wash. Sep. 19, 2017), Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Case Background

In this case by the plaintiffs against several defendants alleging liability resulting from exposure to asbestos, the plaintiffs filed motions to compel against three defendants in July 2017, with all three defendants responding in August 2017, followed shortly by plaintiffs’ reply to each response.

With regard to defendant Weir, the parties’ dispute stemmed over Weir’s search of its electronic database.  The plaintiffs sought information on “any and all Atwood-Morrill valves on the Kitty Hawk and the Peleliu at any time, as well as any of its valves and replacement parts sent to PSNS in 1976 and 1977 when Mr. Blosser was working there”, but Weir contended that its database is not searchable by ship name or hull number and that doing a manual review would be “incomprehensible.”

With regard to defendant William Powell, the plaintiffs moved for an order (1) striking the boilerplate objections, (2) compelling William Powell to fully produce relevant documents, and (3) produce a 30(b)(6) deponent (the parties ultimately resolved the 30(b)(6) issue, so the Court denied this portion of the motion as moot).  Regarding the request for production, William Powell asserted that “it has no documents responsive to [the Blossers’] requests”, but the plaintiffs submitted deposition testimony from 2009 and asserted that William Powell must have relevant documents because its website “makes clear that it has an available database from which to mine information.”

With regard to defendant Flowserve, the dispute existed over determining a date for the 30(b)(6) deposition as well as the date for Flowserve to produce documents.

Judge’s Ruling

With regard to defendant Weir, Judge Settle observed that “it is unclear whether the parties conferred or attempted to confer to resolve this dispute without Court action”, noting that the plaintiffs’ attorney threatened a motion to compel regardless of Weir’s attempt to comply with the discovery requests (“we would be filing a motion to compel regardless because our document requests were broader than the limitation Weir had unilaterally imposed.”) and citing an email exchange from Weir that included the exact same threat to file a motion to compel without any indication of a good faith attempt to resolve this dispute.  To this, Judge Settle said “This failure alone is sufficient to deny the motion to compel.”

However, briefly addressing the merits of the dispute anyway, Judge Settle indicated that he “agrees with the Blossers that the information it seeks seems relevant and readily identifiable” and noted that “Weir’s response seems rather illusive in that it asserts there is only one possible way to electronically search its database.”  So, Judge Settle denied the motion without prejudice and ordered the parties “to meet and confer on the issue of searching Weir’s database.”

With regard to defendant William Powell, Judge Settle denied the plaintiffs’ motion, stating: “The Court cannot compel a party to produce that which its attorney certifies it does not have in its possession. Stale testimony and speculation based on website advertisements do not overcome an attorney’s certification to the Court.”

With regard to defendant Flowserve, Judge Settle stated that “the Blossers have failed to show that a dispute exists that requires Court intervention”, noting that the plaintiffs’ attorney acknowledged that several dates had been proposed by both sides on the 30(b)(6) deposition and that Flowserve contended that it informed the plaintiffs that it will “make responsive documents available at a mutually agreeable time and location” and that the “invitation remains outstanding.”  So, Judge Settle denied the plaintiffs’ motion without prejudice.

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So, what do you think?  What should parties be required to do to demonstrate to the court that their opponent has responsive data it’s not producing?  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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