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Well-Pled Allegations are a Requirement to Expand the Scope of Plaintiff eDiscovery

Posted on May 17th, 2013

How well-pled are your allegations? Do they justify the scope of electronic discovery you are seeking?

In a district court order dated March 5, 2013 in the case US ex rel. King, et al. v. Solvay, Civil Action No. H-06-2662 (S.D.Tx 2013), the crux of a qui tam complaint was that wrongdoing took place through December 31, 2007. However, Relators sought electronic discovery through the present day. This complaint also sparked an investigation by the Attorneys General of Texas and Virginia, who then subpoenaed documents from the defendant. However, defendant Solvay only acquired the company that was accused of wrongdoing in 2010.

In seeking to limit the scope of the eDiscovery requests, Solvay argued that:

  1. The discovery obligations should only be through the allegations contained in the complaint, or December 31, 2007;
  2. They should not be required to preserve electronic data beyond February 7, 2008 (the end date for discovery of the last state subpoena served);
  3. They should not be required to preserve discovery for the period after it acquired the company, which was February 16, 2010.

Solvay also argued that the amount of data would constitute an additional 39 million emails, or 7,665 GB of data.

Relators pointed out that they pled that misconduct was ongoing “to the present.” However, this was only mentioned briefly in five general allegations, out of 768 paragraphs in a 267 page complaint.

The court held that, in the light of the meager allegations and extreme costs of the sought discovery, the additional production would be unduly burdensome. The court limited the scope of discovery to the time period relevant to the Relators’ complaint, or December 7, 2007, and agreed that Solvay need not preserve evidence after February 7, 2008 or to the present.

There is a lesson to plaintiffs here: if you want a broad scope of discovery, make sure you make specific and well-pled allegations inclusive of the time period you are seeking. General pleadings may not be enough to overcome the common argument that discovery production is unduly burdensome.

ILS – Plaintiff Electronic Discovery Experts

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