eDiscovery Daily Blog

• July 28, 2017

eDiscovery Case Week concludes today.  We covered four cases this week and, Wednesday, we covered our Wednesday webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to check out the replay of that) as well.  Here’s the final case.  Just when you thought it was safe to go back in the courtroom!

In Nachurs Alpine Solutions, Corp. v. Banks, No. 15-CV-4015-LTS (N.D. Iowa July 7, 2017), Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Case Background

In this case regarding allegations of confidential, proprietary, and trade secret information taken by a former employee of the plaintiff to the defendant (his new employer), the Court entered an order regarding ESI after a dispute between the parties.  Using search terms approved in the Court’s order, the defendants searched their ESI for documents containing those search terms. The defendants then reviewed those documents for privilege, duplication, and relevance.

The defendants produced two batches of ESI, along with a privilege log reflecting documents withheld on privilege grounds.  The second production batch included placer-sheets stating “Non-Responsive File” marking 235 documents that the defendants believed were nonresponsive.  Through discussions, the plaintiff apparently discovered there were as many as 44,000 other documents that the defendants had withheld from the first batch as nonresponsive (defendants put the number at approximately 24,000 documents).

Attempts to resolve their differences on the first batch proved fruitless and, while the plaintiff identified 28 categories of documents it believed were properly withheld as non-responsive, it identified four categories of documents it believed were relevant and requested an order requiring defendants to produce all of the nonresponsive documents under the same conditions as those produced in the second batch (i.e., (1) Attorneys Eyes Only designation; and (2) no admission of relevance), with defendants paying attorneys’ fees for the cost of culling through the documents for responsive documents.  The defendants argued that plaintiff’s motion amounts to a request that defendants “perform a second, costly review of all of the 24,479 documents withheld as non-responsive.”

Judge’s Ruling

In considering the “countervailing factors”, Judge Williams found that “it would be disproportional to require defendants to go back through the documents to identify those that fall within the four categories plaintiff believes are most likely to generate relevant documents. Nor, even if it did, is it likely that plaintiff would not be any more satisfied or the Court more confident with the result.”  He also presumed that the defendants were “unwilling to comply with the alternative because plaintiff wants defendants to pay the attorneys’ fees associated with culling through the documents”, not because the defendants had something to hide.

As a result, Judge Williams ruled, as follows: “The Court finds the appropriate resolution to this dispute is: (1) defendants produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label; (2) that the production is not to be deemed as an admission by defendants that the documents are relevant; and (3) that plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents. Should plaintiff discover relevant documents during this review which it believes were wrongfully withheld by defendants, then plaintiff can bring a motion for sanctions at that time to recover some or all of the attorneys’ fees associated with the search.”

So, what do you think?  Should parties be ordered to produce documents determined to be non-responsive absent a clear showing that they were misclassified?  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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.