A short Civil Procedure Overview: 1) A protective order must correspond to a discovery request; and 2) A motion to compel needs to have an underlying request.
In an auto-recall case, the Plaintiff had produced 1.79 million pages of documents in discovery, plus an additional 84,000 pages of documents from the Japanese non-party parent company. Nissan N. Am. v. Johnson Elec. N. Am., 2011 U.S. Dist. LEXIS 16022 ( E.D. Mich. Feb. 17, 2011).
For the tone of the opinion, discovery sounded as smooth as a student driver learning to drive a manual transmission up a hill. On ice.
As we go into first gear, the Plaintiff was initially ordered to supplement its discovery responses to 1) identify the sources of ESI it did not search because of undue burden; 2) why the ESI was not reasonably accessible due to undue burden and cost; and 3) an estimated of costs and associated effort in retrieving the electronically stored information. Nissan N. Am., at *2.
Shifting to second gear, the Defendant claimed the Plaintiff’s supplemental discovery contained misstatements that undercut the sufficiency of the Plaintiff’s preservation and production of ESI. Nissan N. Am., at *2-3.
Seeking a tune up to the Plaintiff’s production, the Defendant tried to informally communicate with the Plaintiff to cure the alleged discovery defects. The Defendant asked (not in a discovery request) to produce the following to comply with the earlier Court order:
(a) A data map to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;
(b) Document retention policies;
(c) Tracking records and/or requests for restores; and
(d) Backup policies.
Nissan N. Am., at *2-3.
In what conceptually could be making a right hand turn from the far left lane, the Plaintiff filed a Motion for Protective Order, claiming the Defendant’s informal request 1) sought discovery from “not readily accessible” systems and 2) demanded “broad and duplicative searches” of custodians whose data had already been collected. Nissan N. Am., at *3.
Plaintiff’s Motion for Protective would deny the Defendant the discovery of the following:
(1) Discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided;
(2) Plaintiff’s “not readily accessible” sources identified by Plaintiff, including backups;
(3) Plaintiff’s record retention practices or disaster recovery backup policies;
(4) Plaintiff’s tracking records and requests for computer restores to IT and vendors; and
(5) A “data map” to provide information on all of Plaintiff’s systems.
Nissan N. Am., at *3-4.
The Red Light on Additional Searches
The Defendant argued they did not request the Plaintiff conduct additional searches, but wanted confirmation that custodians were searched involved in the recall or identified in the Rule 26(a)(1) initial disclosures. Nissan N. Am., at *4.
The Court held that since the Defendants were not seeking additional searches, but only confirmation, the Plaintiff’s motion for protective was denied on this issue. Nissan N. Am., at *5. In the words of the Court:
Since Plaintiff claims to have searched the documents of its key custodians and states that it has already produced all relevant documents for all readily-accessible sources, it should be able to provide this confirmation without significant effort. Presumably if Plaintiff did not search the computer systems of all or some of these forty-one individuals it can provide justification for its decision.
Nissan N. Am., at *5.
Back-Up on the Back-Up Tape Argument
As for the back-up tapes, the Court agreed they were not reasonably accessible; however that was not the issue. The Defendant asked for the Plaintiff’s back-up policies, tracking orders and requests for restores. Nissan N. Am., at *8.
The Court found no basis to issue a protective order of the Plaintiff’s back-up systems when there was no request for the information. Nissan N. Am., at *9. Moreover, there was not good cause for a protective order over the Plaintiff’s policies. Nissan N. Am., at *8-9.
Asking for Directions: Data Map & Rule 26(a)(1)
The Plaintiff’s request for a protective order to not produce a data map was an argument that could not be jump started.
The Defendant’s request for a data map included identifying what data was located on different systems, who used the systems, data renention, and back-up information. Nissan N. Am., at *9.
The Court denied the protective order on Rule 26(a)(1) grounds. As the Court explained
In order to comply with this mandatory disclosure counsel must become knowledgeable about their client’s computer systems and ESI at the onset of litigation. Hence, Plaintiff’s counsel should have access to information from which it could readily discern what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived. Plaintiff has not shown that it is in need of an order protecting it from annoyance, embarrassment, oppression, or undue burden or expense related to Defendant’s request for this information. The Court will therefore deny Plaintiff’s motion as to this request.
Nissan N. Am., at *9-10.
Spinning Out on at the Finish Line
First, the Court found the Defendant’s accusations of spoliation and unethical discovery practices to be unsubstantiated. Nissan N. Am., at *10.
Secondly, the Court found the informal discovery requests were separate from the prior Court order. As such, the Plaintiff did not need to produce any of the informally requested information, which was only before the Court on a Protective Order Motion. Id.
Bow Tie Thoughts
Effective pleading and motion practice are extremely important to e-Discovery. A party must be sure to specifically request the desired information before bringing a motion to compel for that information. Additionally, a party opposing production and seeking a protective order must actually oppose the specific request, not go on a related, but not requested, tangent.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.