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Court Chastises Both Parties for Lack of Cooperation in Defining Search Terms

Posted on November 13th, 2017

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Our blog explains ESI caselawIn UnitedHealthCare of Florida v. American Renal Associates, LLC, No. 16-cv-81180-Marra/Matthewman (S.D. Fla., 2017), Plaintiffs filed a Motion to Reconsider a discovery ruling from August of 2017. Defendants filed a response and Plaintiffs replied.

In August, the Court permitted Defendants to select an additional 16 custodians and an additional 12 search terms and to request more at a later date if Defendants had a good-faith basis to do so. In the instant Motion, Plaintiffs argue that the Court should reconsider or modify its Order because the Court never made a finding that Plaintiffs’ production was deficient, and that the Court did not tailor the additional custodians or search terms to any purported inadequacy. Plaintiffs also claim the Court did not ensure that Defendant’s custodians and search terms do not capture an overwhelming disproportionate amount of information, and the Court’s Order is “patently unfair.”

In its response, Defendants argue that the Motion should be denied because the alleged “patent unfairness” is not a permissible ground for granting a reconsideration motion. Next, Defendants argue that the Motion should be denied because Plaintiffs have not demonstrated error by the Court. Defendants also maintain that Plaintiffs have misstated the current state of discovery in the case.

In reply, Plaintiffs claim that some of the proposed search terms attempt to circumvent other Court rulings and are therefore improper. In sur-reply, Defendants argue that the new custodians and search terms are supported by the evidence, are relevant, and are proportional to the needs of the case.

To prevail in a Motion to Reconsider, the moving party must demonstrate why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. A motion for reconsideration should raise new issues, not merely address issues litigated previously. The Court will consider a change in controlling law; the availability of new evidence; or the need to correct clear error.

The Court states that there has been no intervening change in controlling law. Plaintiffs do not argue to the contrary. Therefore, reconsideration is not appropriate on that basis.

Second, the only asserted new evidence submitted by is email correspondence, a list of the additional 16 custodians, a list of additional 12 search terms; and a Declaration from the Director of e-Discovery at UnitedHealth Group. The Court has considered this asserted new evidence in an effort to be fair to all parties involved in this case.

Despite this Court’s suggestions to the parties and their counsel as to the cooperative and professional manner in which the parties should engage in the e-discovery process in this case, there has instead been an apparent lack of cooperation and constant bickering over discovery, especially e-discovery. The alleged new evidence submitted by Plaintiffs clearly show that, where parties in a large civil case do not cooperatively engage in the e-discovery process, the collection and indexing of documents and the production of relevant documents, becomes much more difficult. The Court says there is no need to correct clear error or manifest injustice as the Court has not committed clear error or caused any party manifest injustice. Rather, if anyone is to blame for the belabored and excessive discovery process in this case, the Court suggests that it is the parties themselves.

Plaintiffs’ first argument as to clear error or manifest injustice is that the Court’s ruling permitting additional custodians and search terms is not based on the evidence, is unfair, and is overly broad. The Court does not believe that its ruling is unfair and, in fact, the ruling is based upon the arguments made to the Court in the many filings by the parties and is based on the arguments made at the lengthy discovery hearing. Defendants may not use the additional search terms to circumvent any prior limitations that the Court has placed upon discovery in this case.

Second, Plaintiffs argue that the Court has been unfair in requiring Plaintiffs to produce more discovery than Defendants. The Court has endeavored to be fair to both parties in this case, and, merely because Plaintiffs do not like some of the Court’s rulings, does not mean that the Court has been unfair.

For the above reasons, the Plaintiffs’ motion is granted to the extent that the Court’s prior Order is clarified to advise the parties that the additional custodians and search terms permitted Defendants by the Court must not go beyond the limits and parameters previously placed on the scope of discovery by this Court in its numerous prior discovery Orders. The balance of Plaintiffs’ motion is denied.

ILS–Plaintiff ESI Discovery Experts

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