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Court Orders Plaintiff to Produce Documents It Had Already Produced in Government Investigation

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Posted on January 16th, 2015

In Solyndra v. Suntech Power Holdings Co., Ltd. et al., Case No. 12-cv-05272-SBA (EDL) (N.D. Cal. Dec. 30, 2014), Defendant served document requests on Plaintiff that sought emails and documents that Plaintiff had already produced in a series of government investigations. Plaintiff agreed to produce a subset of documents responsive to agreed-upon search terms, but Defendant wanted all documents already produced to the government.  After meeting and conferring, the parties reached a compromise agreement wherein Plaintiff agreed to produce some documents previously produced. Disputes remained regarding whether Plaintiff would produce emails for all agreed-upon custodians or only stand-alone documents (e.g., Word, Excel, PowerPoint files).  Motion practice followed wherein Defendant moved to compel Plaintiff to produce the disputed documents.

The court sided with Defendant, finding Plaintiff’s position inconsistent because it had first agreed to produce any document responsive to the search terms but later asserted that the agreement applied only to non-email documents. The court also observed that Plaintiff would face no additional burden in producing the data because it had already produced it to the government. Plaintiff had further not made a showing that the production would be irrelevant or disproportionate, and, in fact, had previously represented that it would produce such documents. The court granted the motion to compel and ordered Plaintiff to produce all non-privileged documents, including emails, responsive to the agreed-upon search terms.

What lessons can the Plaintiff’s bar learn from the Northern District of California’s decision in Solyndra? Always be certain to understand the scope of documents you commit to producing during meet and confer sessions with defense counsel.  Back-tracking after the fact is rarely easy when it comes to ESI.

ILS – Plaintiff eDiscovery Experts

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