In Bischoff v. Brittain, no. 2:14-dv-1970 KJM CKD (October 26, 2016), Plaintiffs alleged discriminatory housing practices against Defendants. During discovery, Plaintiffs alleged Defendants failed to identify the search terms used to locate responsive email threads. Further, Plaintiffs alleged Defendants spoliated relevant internal faxes, and therefore filed a motion to compel. The court ordered Defendants twice to comply with the discovery orders.
Plaintiffs later renewed their motion to compel and asked for terminating sanctions in the form of a default judgment based on the failure to comply with previous discovery court orders. The court noted that Plaintiffs waited until almost 6 months after the incomplete production was delivered, and that Plaintiffs’ counsel did not meaningfully hold a meet and confer. However, the court addressed Plaintiffs’ motion.
The court considered five factors when reviewing whether a default judgment was proper:
- The public interest in resolving the litigation
- The court’s need to manage its docket
- The risk of prejudice to opposing party
- Public policy favoring disposition of cases
- Availability of less drastic sanctions
The court considered the specific facts of the case with these elements in mind. The court noted that defense counsel provided a declaration which explained the search methodology. Regarding the scope of the emails, it was noted that Plaintiffs’ request could have reasonably been misinterpreted by Defendants to only include one property at issue, not multiple, and the date range started when this property was bought.
The court also noted that Defendants had disclosed several search terms, and since the disclosure of any remaining search terms would only expand the production, there was no harm in failing to produce all the search terms. Plaintiffs had also failed to articulate any additional terms they wanted but were not provided or used. The court found the search to be adequate and sufficient to find responsive documents. The court also found that Defendants had produced the hard copies of the faxes that Plaintiffs requested, and therefore denied the request for terminating sanctions.
ILS – Plaintiff Electronic Discovery Experts