Must a Plaintiff Produce ESI When It Would be Largely Duplicative?
If a plaintiff corporation is producing ESI, but the bulk of the production lies with its subsidiary, must the plaintiff corporation also search its own electronic data, if it would be largely duplicative? This was one issue in Progressive Casualty Insurance Company v. FDIC, et al., Case No. 2:12-cv-00665-KJD-PAL (D.Nev. March 13, 2014).
Plaintiff Progressive sought a declaratory judgment that it was not responsible to provide coverage for a lawsuit brought by the FDIC, acting as receiver, against Silver State Bank. In response to requests for plaintiff electronically stored information (ESI), Progressive maintained that it need not conduct independent searches for responsive documents. Progressive maintained that the bulk of the production is being pulled from its subsidiary and managing general agent, ABAIS. Therefore, any additional documents or electronic data from Progressive itself would be largely duplicative of the ABAIS production and unduly burdensome.
The FDIC disagreed, and offered examples of ESI that may be in Progressive’s possession but not ABAIS, including files of custodians not part of ABAIS, communications with Progressive employees, and files maintained by Progressive employees. Progressive admitted it may have email chains contained on its back-up tapes that ABAIS did not have, but plaintiff trial attorneys represented to the court that was the only category of responsive documents that would not be part of the ABAIS production.
The court accepted the representations of counsel that all relevant and responsive documents and data would be produced by ABAIS. It noted that the FDIC would have a chance to question the accuracy of this in deposition discovery. The court declined to compel Progressive to produce the ESI, but cautioned that should the representations prove to be inaccurate, it will order additional production at a later time.
There’s another plaintiff ESI issue in dispute: Progressive offered general, blanket objections to the FDIC’s Rule 34 requests. Do blanket statements suffice for an objection and to assert a privilege? Or should the court grant the FDIC’s Motion to Compel? Will a local rule throw a wrench in the FDIC’s Motion? Our discussion continues in our next post.