No Request, No Motion to Compel

The Plaintiff in ADT Sec. Servs. v. Pinancle Sec., LLC, objected to a Magistrate Judge’s denial to a motion to compel to redo the Defendant’s search for responsive ESI.

The Plaintiff’s argued the Defendants failed to search individual employee computers and back-up tapes.

Additionally, the Plaintiff’s highlighted a considerable disparity between the volume of ESI produced by the Plaintiff verse the Defendant. ADT Sec. Servs. v. Pinancle Sec., LLC, 2012 U.S. Dist. LEXIS 98948 (N.D. Ill. July 11, 2012).

As such (in the Plaintiff’s argument), the disparity demonstrated the Defendant did not produce enough ESI, thus requiring additional searches.

Discovery Order to Conduct Additional Searches

The Magistrate Judge did not find any “legitimate basis for requiring Pinnacle to re-do its extensive ESI search” based on only a general assertion that documents must be missing. ADT Sec. Servs. at *6.

A motion to compel discovery should identify the responses that are inadequate and what information is necessary to make them adequate.  ADT Sec. Servs. at *5-6. The Plaintiff only made a general assertion that the searches were inadequate and thus the motion failed in a broad court order. Id.

However, the Magistrate Judge did issue a limited order to re-search seven employee computers, because there was evidence the computers might have contained ESI missing from the original production.  ADT Sec. Servs. at *6.

The District Court found the Magistrate Judge’s order was reasonable and not clearly erroneous or contrary to law, because the seven computers ordered to be searched were used by individuals whose correspondence had been specifically requested by the Plaintiff with specific search terms. ADT Sec. Servs. at *6.

Moreover, the Plaintiff’s motion to compel the search of 10 additional custodians with new search terms violated the principle that “…[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.” ADT Sec. Servs. at *7, citing Seventh Circuit Electronic Discovery Committee, Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03 (2010).

Based on the above, the Court found the Magistrate Judge’s order was not clearly erroneous or contrary to law. ADT Sec. Servs. at *7-8.

Bow Tie Thoughts

There are procedural horror stories of attorneys bringing motions to compel discovery without an underlining discovery request. Such motions should be denied, because you cannot have a motion to compel without first requesting specific discovery.

Discovery is not supposed to be a monkey throwing darts wildly, hoping one hits the target. However, there can be challenges in determining the relevant custodians, what to specifically request, and the sources of electronically stored information. These challenges can make the brightest lawyer feel like the dart throwing monkey.

There are situations when it comes to eDiscovery where motion practice can be justified. If a production is reviewed in software that shows relationships between email messages, additional custodians may be identified who were not included in the original production. This can easily result in supplemental discovery or possibly motion practice. Hopefully, there is a meet and confer and ESI that is responsive is produced without spending money on motion practice.

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 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.