ESI Production Deemed Deficient For Failure to Confer on Search Approach, Court Orders Additional Searches
The action and attendant discovery disputes in United States v. New Mexico State University, No. 1:16-cv-0911-JAP-LF (D.N.M. Sep. 29, 2017) arose out of allegations of gender based pay discrimination purportedly committed by employer New Mexico State University, in violation of the provisions of Title VII of the Equal Pay Act.
Defendants New Mexico State University and New Mexico State University Board of Regents’ (“NMSU”) filed a motion for protective order. Plaintiff, United States of America (“USA”) opposed the protective order request.
This motion arose from the circumstances of NMSU’s responses to USA’s discovery. NMSU provided a letter to USA that explained the scope of NMSU’s efforts to locate documents and information responsive to USA’s discovery requests. USA then sent a reply to NMSU’s letter, in which the USA described (1) inadequacies in NMSU’s searches, and (2) deficiencies in NMSU’s responses to the discovery requests.
In its motion, NMSU argued that the discovery sought by the USA, particularly with regard to additional requested searches, was not proportional to the needs of the case. NMSU complained that it already produced more than 14,000 pages of documents resulting from over 20 searches.
The Court considered the issue of how parties should approach searching for and producing electronically stored information (“ESI”) in response to discovery requests. The Court found that although NMSU had performed multiple searches and had produced thousands of documents, counsel for NMSU failed to adequately confer with the counsel for USA prior to performing the searches. Such lack of cooperation on the part of the producing party resulted in searches that were inadequate to yield sufficient responsive documents. The Court noted that the USA was correct that “NMSU alone is responsible for its illogical choices in constructing searches.” As a further consequence, the Court stated that the judiciary rather than the parties ends up determining the searches to be conducted, and further admonished the parties that cooperation and transparency in preservation and production of ESI is required during discovery.
The Court denied Defendants’ motion for protective order, and issued an Order with instructions that NMSU conduct additional searching regarding USA’s discovery requests.