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Plaintiff ESI Requests Causing eDiscovery Disputes in Employment Case

Posted on February 28th, 2014

In the case Assaf v. OSF Healthcare System, No. 11-4108 (C.D.Ill. January 29, 2014), the court considered two motions: Plaintiff’s Motion to Compel and Defendants’ Motion to Limit Discovery. In this employment discrimination case, plaintiff alleged violations of Title VII, breach of contract and a state law employment claim. Plaintiff discovery requests were issued, and the defense acknowledges much of the data and documents sought were electronically stored information (ESI).

The defense opposed the Motion to Compel and claimed that after the requests were tendered, Plaintiff refused to respond to their initial ESI proposal other than to reject it outright. Particularly, the defendants sought an agreement on search terms, record custodians and the overall scope. When Plaintiff did not participate, the defendants did not conduct the ESI search.

Plaintiff claimed he refused to respond to the proposal because the defendants stated they would only make one ESI search, which he found to be unreasonable. However, the court stated that Plaintiff could not possibly assert he engaged in a good faith effort to resolve these disputes by not cooperating regarding the parameters of the one search.

The court took a moment to summarize the rules that govern this dispute:

  • Fed.R.Civ.Pro 26(b): Discovery is proper for any subject, not privileged, relevant to a claim or defense
  • Fed.R.Civ.Pro. 26(b)(2)(C): Discovery is limited in that it cannot be unreasonably cumulative or duplicative
  • Fed.R.Civ.Pro. 33 and 34: Governing rules regarding interrogatories and requests for documents, respectively. Both incorporate the scope and limitations of Fed.R.Civ.Pro 26(b).

The court ordered Plaintiff to participate in determining the parameters of the search, and if the initial search uncovers information that requires additional searches, Plaintiff can bring that matter before the court on a later date. As the court stated, plaintiff’s motion to compel electronic discovery is this case was premature. Plaintiff’s motion to compel was denied regarding ESI at this time, and the Defendants’ Motion to Limit Discovery was granted to the extent that it sought Plaintiff participation in the ESI process.

ILS – Plaintiff Electronic Discovery Experts

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