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Piecemeal eDiscovery Production at Issue in Contentious Litigation

Posted on January 2nd, 2015

In Armstrong Pump, Inc. v. Hartman d/b/a Optimum Energy LLC, No. 10-CV-446S(2014 WL 6908867)(W.D.N.Y.), defendant Optimum filed a motion for miscellaneous discovery relief. Prior to the present Motion, the court had warned plaintiff Armstrong to not engage in a piecemeal discovery production. After the warning, Armstrong had produced nine separate discovery productions. The main crux of Optimum’s argument seeking sanctions was that Armstrong was withholding documents, that it underestimated the number of employees involved and that the discovery received should have been tendered in 2011.

Armstrong objected to such characterization and pointed out that first, it tendered an additional few thousand documents the same day Optimum filed its discovery motion that had not yet been reviewed. Second, Armstrong alleged Optimum failed to acknowledge the massive search and production undertaken for the documents and electronic data. Third, Optimum failed to meet and confer about any concerns prior to filing the present Motion, in violation of FRCP 37.

The court admonished both parties for filing hundreds of pages and multiple motions regarding three-year-old discovery requests in the litigation, which was over four and a half years old. The court expressed frustration that despite its warning, Armstrong provided piecemeal productions and failed to file for a protective order under Rule 26(c) if it objected to a discovery request. The court also noted that although both sides accused the other of material misrepresentations, neither ever filed a formal motion under Rule 11 or 28 USC § 1927, and instead engaged in “passive-aggressive snarking.”

The court turned to FRCP 37 to enforce proper conduct, noting its three-fold purpose (paraphrased) in 1) ensuring a party does not benefit from evading discovery, 2) deter parties from avoiding discovery obligations and 3) general deterrence for parties in other litigation.

The court then configured its own discovery order with the core of Optimum’s counter-claims in mind. It noted certain phrases that were pertinent to the issue, and ordered Armstrong to search for these phrases from 2004 to the present in all files, documents, communications and recordings. It must maintain a list of every server, computer and file searched, and provide full copies of all documents in question. Failure to comply with its order will lead to sanctions under FRCP 37(b)(2)(A). The court didn’t let Optimum completely off the hook, however, warning that that it would face the same discovery order if it failed to file a sworn statement it had complied with all outstanding discovery requests or formally object via motion for protective order.

ILS – Plaintiff eDiscovery Experts

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