eDiscovery Daily Blog

• June 8, 2017

In Elhannon LLC v. F.A. Bartlett Tree Expert Co., No. 2:14-cv-262 (D. Vermont, Apr. 18, 2017), Vermont District Judge William K. Sessions, III granted in part and denied in part the plaintiff’s renewed motion to compel, denied motions for sanction by each party against the other, and ordered the parties to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery.

Case Background

In a breach of contract and consumer fraud dispute over pest infestation in the plaintiff’s tree nursery, the parties had numerous disputes over whether the defendant had met its discovery obligations.  In February 2016, the plaintiff filed a motion to compel several categories of documents, including printouts of all screens from the defendant’s Electronic Landscape Manager (“ELM”) program, internal correspondence and emails pertaining to the plaintiff, internal financial and other analysis documents pertaining to the plaintiff, compensation and personnel file materials for the two key defendant employees on the plaintiff’s contracts, and documents from the defendant’s other electronic systems.

In most categories, the defendant’s arguments primarily related to either a contention that all responsive documents had already been produced, the documents requested were either irrelevant or not specific to the plaintiff or were already produced via another electronic system.  As for the internal correspondence and emails, the plaintiff contended that the defendant’s email searches were “haphazard, overly narrow, devoid of proper guidance by counsel, and unreliable to say the least”, noting that several custodians were either not provided with search terms, or the terms were too limited or may have not performed any searches at all.  The defendant did acknowledge that it “recently recovered a number of emails previously not produced due to a gap in the technology used to perform its earlier email searches” and did supplement the production with those.

The plaintiff renewed its motion on the ground that recent deposition testimony demonstrates that Defendant’s prior representations to this Court asserting complete discovery responses were false.  In addition, both parties cross-moved for discovery sanctions, the plaintiff’s request was against the defendant failing to satisfy their discovery obligations and the defendant’s request was against the plaintiff for failing to meet and confer.

Judge’s Ruling

Judge Sessions noted that “the parties’ filings indicate that counsel have approached each other with significant animosity, and that substantial challenges exist to narrowing discovery disputes.”  Taking several of the document categories in consideration, Judge Sessions ordered the defendant to produce additional relevant, responsive data and documents from those sources.

With regard to the email search terms, Judge Sessions stated:

“Given the parties’ failure to engage in a comprehensive meet and confer or to reach agreement on the scope of email search terms, the Court will require the parties to do so now, rather than grant Elhannon’s motion on this ground. If necessary, the parties may request the Court to approve a list of appropriate email search terms after their meet-and-confer.”

Judge Sessions did not find that the plaintiff’s failure to meet and confer prior to filing the instant motion warranted the imposition of sanctions, nor did he find that “either party has provided sufficient reasons to justify sanctions against the other for failing to produce documents.”

So, what do you think?  Should parties face sanctions for failing to meet and confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

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