Court Chides Federal Government For Inadequate ESI Production
In EW Orleans Regional Physician Hospital Organization, Inc. v. U.S., Case No. 11-541C (U.S. Ct. of Fed. Claims, Aug. 21, 2015), the U.S. Court of Federal Claims considered Plaintiff’s motion to compel further discovery responses from the U.S. federal government.
Plaintiff filed suit against the federal government regarding alleged improper Medicare contracts following Hurricane Katrina. The parties had numerous discovery disputes regarding the scope of electronic document production. Defendant eventually agreed to Plaintiff’s proposed list of custodians and search terms but when Plaintiff reviewed Defendant’s production, Plaintiff found it deficient and filed a Motion to Compel, asking the court to impose a “more rigorous” search protocol. Defendant opposed the motion by arguing that Plaintiff had not conferred in good faith before filing the motion as required by FRCP 37, and that Plaintiff had not established the inadequacy of the production.
The court disagreed with Defendant, finding that Plaintiff had properly conferred with Defendant and that Plaintiff had established the inadequacy of Defendant’s production. The court concluded that Defendant’s counsel had not sufficiently overseen the ESI production given that nothing in the record showed that Defendant had conducted a consistent and reliable search, with the court noting that the eight custodians who performed searches all used different search terms. Accordingly, the court ordered the parties to agree upon a new search protocol, and ordered Defendant to abide by the new protocol.