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Is One Missing Email Enough to Extend Discovery After Three Years?

Posted on September 26th, 2014

In Sun Products Corporation v. Lock & Load Industries LLC, Case No. 2:11-cv-316-CW-PMW, D. Utah Central Div. Sept. 11, 2014, Sun Products (Plaintiff) sued the Defendant, alleging that Defendant sold Plaintiff an antibacterial drug which failed to meet certain specifications.

In December 2011, a Plaintiff custodian was deposed and asked whether he responded to a certain email from May 2008 that was relevant to the case. No response was provided to Defendant.  Two weeks later, Defendant’s counsel sent Plaintiff’s counsel a letter requesting follow-up information, including the May 2008 email. By January 2012, Defendant had produced five requests for the email.

In October 2013, Defendant deposed another Plaintiff employee pursuant to Rule 30(b)(6) regarding Standard Operating Procedures (SOP) when backing up copies of emails. The employee said she looked at emails but did not conduct a forensic analysis.

Can One Move to Extend Discovery for an Indefinite Period?

Defendant moved to compel and continue discovery, with the specific request to access four of Plaintiff’s computers to determine whether there was a response to the May 2008 email and whether a particular SOP existed. Defendants also moved to extend the discovery period for an unspecified period to conduct electronic discovery and any necessary follow-up discovery.

Was the Discovery Sought Unreasonably Cumulative or Duplicative?

Plaintiff had responded to Defendant’s request for 1) a response to the May 2008 email and 2) the Plaintiff’s SOP. The court determined that the Plaintiffs no longer had them in their possession and that, regarding the SOP, had made a good faith effort after diligent search to produce them.

Was There Ample Opportunity to Obtain the Information by Discovery in Action?

The Court determined that the Defendant had ample time to conduct the discovery it sought over the course of three years. Furthermore, the Court found Plaintiff had responded in good faith to search for the response to the May 2008 email, although it was never located (recall the email was from six years prior.)

The Court also noted that the Defendant filed the motion requesting an indefinite extension of time to conduct discovery on the day before discovery in the case was set to close.

Did the Burden or Expense of Extended Discovery Outweigh the Likely Benefit?

The court did not address this question, given the ample opportunity Defendants had in a three year discovery period and the duplicative nature of its request.

The court denied the Defendants’ motion.

ILS – Plaintiff eDiscovery Experts

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