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Defendants Must Meet and Confer with Plaintiffs Following Inadequate ESI Production

Posted on February 5th, 2016

In Gardner et. al. v. Continental Casualty Company, Case No. 13-1918 (D. Conn., Jan. 13, 2016), Plaintiffs sued Defendant in a class action for violations of Connecticut’s Unfair Trade Practices Act. During discovery, Plaintiffs requested numerous documents, including the production of ESI. The parties disputed defense counsel’s scope of review of the documents responsive to the initially agreed-upon ESI search terms. Counsel had agreed to a list of search terms from 23 different email custodians, resulting in about 38,000 documents. Defendants reviewed the documents for relevancy and privilege and only produced 2,214 pages, including 274 pages of lawsuit pleadings.

Plaintiff filed a Motion to Compel the Guideline and the ESI. Plaintiffs argued that the responsive pages were “cherry-picked,” making the production inadequate. They also alleged that Defendant redacted or omitted relevant information. Defendant argued that it provided extensive discovery and expended significant resources reviewing the 38,000 documents for relevance and privilege.

The court disagreed with Plaintiffs that Defendant had to turn over all 38,000 documents, noting that Defendant may permissibly eliminate some documents on the basis of privilege and relevance. However, the court expressed concern that another party had produced relevant documents not produced by Defendants which should have been in Defendants’ custody. The court thus granted Plaintiff’s motion in limited part as to the ESI, ordering the parties to meet and confer regarding “sampling and iterative confinement” of results or “quick peek protocol” as to the 38,000 documents and notify the court in writing of progress. The court also ordered Defendant to produce certain documents to chambers for in camera review.

ILS – Plaintiff ESI Experts

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