In Nachurs Alpine Sols., v. Banks, No. 15-CV-4015-LTS, (N.D. Iowa, July 7, 2017), the matter was before the Court due plaintiff’s resisted motion to compel the production of electronically stored information (“ESI”). Plaintiff (Nachurs Alpine Sols.) argues that Defendants’ (Banks) ESI discovery responses were deficient in that Plaintiff believes Defendants wrongfully withheld documents generated as a result of a search of ESI on the ground that the documents were deemed beyond the scope of discovery.
Plaintiff and Defendant Nutra-Flo Company (“Nutra-Flo”) are competitors manufacturing and selling fertilizer. Plaintiff’s complaint alleged, that its former employee, Defendant Brian Banks (“Banks”) took confidential, proprietary, and trade secret information from Plaintiff and provided that information to his new employer, Defendant Nutra-Flo.
Discovery followed during which a dispute arose over the search and production of ESI. Using search terms approved by the Court, Defendants searched their ESI for documents containing those search terms. Defendants then reviewed those documents for privilege, duplication, and relevance.
On March 13, 2017, Defendants produced a first batch of ESI, along with a privilege log reflecting documents withheld on privilege grounds. Defendants withheld documents as being nonresponsive (e.g., outside the scope of discovery), but did not label those documents as nonresponsive. On April 19, 2017, Defendants produced a second batch of ESI, along with another privilege log. Between the two productions, defendants provided plaintiff with 11,687 documents, but withheld 44,337 documents as being nonresponsive.
Based on a review of the privilege logs, Plaintiff believes that Defendants have withheld a substantial number of documents that are relevant. Plaintiff argues that it is not requiring Defendants to conduct a new search of ESI; it is requesting that Defendants go through the documents identified through search terms from the ESI, but which Defendants withheld as being beyond the scope of discovery.
FRCP Rule 26(b)(1) says the burden of making a threshold showing of relevance is on the non-requesting party, and then the burden shifts to the party resisting the motion to compel. A mere statement by the objecting party that the request was overly broad, burdensome, or oppressive is not enough to cause the Court to reject the order. Under the rules, district courts possess considerable discretion in determining the need for, and form of, discovery.
The Court finds there is a showing that the withheld documents fall within the broad scope of liberal discovery because they contained one of the terms to search for potentially relevant documents in Defendants’ ESI. Plaintiff has not made a strong showing, other than this, that the withheld documents are relevant (but of course, without access to the documents, it is difficult for it to do so). On the other hand, Defense counsel have represented that they have reviewed the documents and, although they contain one of the terms used for the ESI search, they do not in fact fall within the scope of discovery. The Court accepts that defense counsel, as officers of this Court, acted in good faith in making that determination. There is no way for the Court or Plaintiff to double-check that work, however, without reviewing the documents themselves. Plaintiff believes that at least some of the nonresponsive documents are relevant, though their belief is not well supported and the few examples it identified in footnotes defendants have demonstrated are not relevant or have already been produced. The Court’s confidence in Defendants’ response is colored, however, by the Court’s conclusion that Defendants have previously not complied with discovery obligations.
The Court finds the appropriate resolution to this dispute is: Defendants produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label; that the production is not to be deemed as an admission by Defendants that the documents are relevant; and that Plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.