In Elhannon, LLC et. al. v. The F.A. Bartlett Tree Expert Company, Case No. 14-00262 (D. Vermont, Apr. 18, 2017), Plaintiffs hired Defendant to design and execute a pest management program to protect the trees in Plaintiffs’ nursery. When the trees suffered an outbreak of insects and diseases, Plaintiffs sued, blaming the loss on Defendant’s agents’ neglect and illegal application of chemicals. Plaintiffs sued Defendant for breach of contract, negligence, negligent misrepresentation, fraud and intentional misrepresentation, fraud in the performance, and violations of general business law concerning consumer fraud.
During discovery, Plaintiffs sought production of ESI from Defendant, including all information on their account in Defendant’s database, including screen printouts; all internal correspondence and emails; personnel files for certain employees; and documents from Defendant’s other electronic system. Plaintiffs filed a motion to compel, which the court denied based upon Defendant’s representations that discovery was complete. Thereafter, Plaintiffs took depositions and then renewed the Motion to Compel, alleging that the deposition testimony showed that Defendant’s representations to the court regarding its responses was false.
With respect to the screenshots, deposition testimony showed that there were screens not produced by Defendant. Defendant argued that Plaintiffs’ request was limited to screens related to the relationship of the parties, but Plaintiffs argued that the request sought the entire file, including screens, and that testimony confirmed there was information in Defendant’s database that did not match any information in the hard copies produced.
With respect to emails, Defendant argued that a gap in technology used to perform its earlier email search caused some emails to not be found. Defendant performed searches outside the email system, but Plaintiffs argued that these searches were deficient. Deposition testimony revealed that Defendant held three corporate databases; Defendant argued that they were co-extensive and that a search of one would yield results from all. However, testimony revealed that one of the databases contained more information than the others.
The court found that Defendant’s discovery deficiencies were not a showing a bad faith and thus declined to award sanctions to Plaintiffs. However, the court did order that Defendant produce the financial records and personnel records demanded by Plaintiffs as well as the policy statements in its additional electronic databases, because Defendant should have instructed its staff to search relevant databases for these policies. The court also ordered Defendant to search all its electronic systems and not just one. The court found that Plaintiffs were permitted to inspect Defendant’s computer system, but that this was not in response to the document requests, and such inspection would only suffice if expressly permitted in response to the requests. Finally, the court ordered the parties to meet and confer on the scope of email search terms.