Court Orders Defendants to Conduct Additional Search for Reportedly Deleted ESI
In Neonatal Product Group, Inc. v. Shields, et. al., Case No. 13-2601 (D. Kansas, Oct. 20, 2015), an action seeking a declaratory judgment regarding patent infringement, Defendants filed a third party claim against the Counterclaim Defendants and propounded discovery requests upon them. Counterclaim Defendants responded to the requests but stated that much of their responsive electronically stored information (ESI) no longer existed because of the way they had stored the information on their servers. Defendants filed a Motion to Compel, arguing that the production was deficient.
The court granted the Motion to Compel as to responses to certain requests, stating that the Counterclaim Defendants failed to properly raise their objections to the requests in response to the Motion. The court acknowledged that a party cannot produce ESI that no longer exists but ordered the Counterclaim Defendants to conduct a more thorough search for responsive information. Counterclaim Defendants also objected to certain requests as overbroad, but the court granted the Motion as to those requests as well. The court denied the Motion as to certain other requests, including Defendants’ request that Counterclaim Defendants provide a detailed account of steps taken to preserve evidence and provide their computers and hard drives for inspection, because Defendants had only made the requests as part of their Motion to Compel rather than through normal discovery channels.
Because the Motion was granted in part and denied in part, the court declined to award attorneys’ fees to Defendants.