This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to support the argument.
However, just because a requesting party cannot prove a production is inadequate, does not mean the production is adequate.
A Court was faced with this issue in Am. Home Assur. Co. v. Greater Omaha Packing Co. The requesting party argued that the production of only 25 email messages in a case where discovery started in July 2012 was inadequate. However, the Court stated it “cannot compel the production of information that does not exist.” Am. Home Assur. Co. v. Greater Omaha Packing Co., 2013 U.S. Dist. LEXIS 129638, at *17 (D. Neb. Sept. 11, 2013).
The Court ordered the following as a solution:
Discovery on this matter has been ongoing since July of 2012. It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.
Am. Home Assur. Co., at *17-18.
Bow Tie Thoughts
This is a hard issue for any Judge and requesting party. I believe the Court reached the best solution with what was known by the Court and parties. Moreover, the Court knew when to stop with its order.
Will a small production always result in a producing party being compelled to disclosed what it searched, what it intends to search and search terms? Most likely no, but it is a good alternative to forcing a requesting party to prove a negative.
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.