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Court Considers Objection Waivers for Inadequate Response to Plaintiff ESI Requests

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Posted on October 7th, 2013

In Westdale Recap Properties, Ltd. et al. v. NP/I&G Wakefield Commons, LLC et al., No. 5:11-CV-659-D (E.D.N.C. September 26, 2013), plaintiff was a shopping mall tenant who sued the defendant property manager for fraud and unfair and deceptive practices, among other claims. After exchanging agreed-upon ESI protocols, the defendants moved for a time extension. In their late response, the defendants offered a one-line general objection to each request, plus an additional set of general objections. No objection was tailored to any specific plaintiff ESI request.

The parties agreed to a protective order, and the defendants then produced 500 pages of documentation, then 120 pages, then 24,000 pages in PDF format by using agreed-upon search terms. Plaintiffs asserted that the defense production was inadequate, and made the following challenges:

1.         Defendants waived any objection to the requests for producing the ESI untimely;

2.         Defendants waived any objection to the requests by asserting stock, nonparticularized objections;

3.         The outstanding ESI should be produced in native format with metadata (not PDFs).

The court denied plaintiffs’ requests that defendants’ objections be waived due to untimeliness or the general nature of the objections. The court found that the defense’s excuse that it was waiting for the protective order to be valid, and the plaintiffs failed to demonstrate prejudice from the untimeliness. The court also noted that the defendants supplemented its production with 24,000 documents after search terms were agreed upon. Although the court noted that “reliance on general objections can, of course, serve to waive specific objections,” it found the sanction of waiver to be too harsh for this situation.

The court ordered the defense to further supplement its production, but it did not order the production to be in native file format. The defense contended it would produce the data in the “ordinary course of business,” and that the searchable PDFs would be sufficient. Finally, the court noted that plaintiffs might renew their objections regarding native file format with metadata after the supplemental production was delivered.

ILS – Plaintiff Electronic Discovery Experts

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