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Another Cautionary Tale: Retain an eDiscovery Vendor Before Its Too Late

Posted on February 18th, 2013

In the federal district court case Branhaven, LLC v. Beeftek, Inc., et al., Civ. No. WDQ-2334 (D. Md. 2013), the Court addressed the issue of delayed and inadequate plaintiff ESI production.

The opinion is a ruling on defendant’s Motion for Sanctions, alleging that the plaintiff engaged in “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation.” The defendant originally requested electronic data discovery on January 31, 2012.

The Court noted that plaintiff failed to adequately respond to the defendant’s discovery requests, producing only incomplete and evasive answers on March 21, 2012. On June 14, 2012, minimal plaintiff ESI production was delivered in pdf form, consisting of 388 documents. Then, on July 20, 2012, only a few business days before oral depositions were scheduled, 112,106 pages were electronically delivered to defendants, consisting mostly of email threads.

Plaintiff proffered a few explanations of why the ESI production was so late:

  • Plaintiff claimed the source of the electronic data was computer servers it acquired when purchasing assets of another company, and they did not have passwords;
  • Plaintiff noted that it was a start-up company, and therefore had minimal litigation funds; and
  • Plaintiff, at first, did not use the services of an eDiscovery vendor, and instead attempted to collect and cull the electronic data and documents itself. Plaintiff only decided to utilize an outside vendor approximately 5 months after the ESI production was due.

The defendant dismissed these explanations and argued the production was a “discovery dump,” and sought sanctions for this “large, unorganized and last minute document production.”

Will the Court accept the excuses for the delayed ESI production? If the plaintiff’s excuses are true, does that excuse the delay or will the court order sanctions? Our discussion of Branhaven continues on Wednesday.

ILS – Plaintiff eDiscovery Experts

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