When Electronic Documents are Fewer than Expected, Defendants must Explain Why or Produce More

9 Dec 2013

In American Home Assurance et al. v. Greater Omaha Packing Company Inc., No. 8:11CV270 (Dist. Court, D. Nebraska Sept. 11, 2013), plaintiffs Cargill and American Home Assurance alleged defendant GOPAC supplied E. coli-tainted beef that sickened dozens of people in 2007. Mired in discovery for more than a year, plaintiff Cargill seeks a motion to compel production of electronic documents.

Defendant GOPAC produced only 25 emails, which Cargill said demonstrated the deficiencies in the defense production. GOPAC, however, argued the company never stored pre-2011 emails, and that they produced all found electronic documents. Strangely, defendant GOPAC additionally said they continue to provide additional information, a claim that bothered the court. The court asked why GOPAC would continue to find documents after more than a year of discovery, implying potential agreement with plaintiff Cargill’s assertion that GOPAC withheld evidence.

No Further Action by the Court until Defendants Disclose eDiscovery Search Terms and Searched Locations

Though bothered by defendant’s tiny electronic document production, the court did not immediately act on Cargill’s motion to compel. Instead, it ordered defendant GOPAC disclose all sources and search terms already searched. In addition, GOPAC must disclose all sources and search terms they have not yet finished searching and produce all remaining electronic documents by November 1, 2013. Plaintiff Cargill will have the opportunity to contest eDiscovery after this date.

Plaintiffs, presented with a miniscule production of electronic documents, often suspect the defendant is withholding evidence. Fortunately, this case demonstrates court willingness to force defendants to justify and explain themselves when eDiscovery is unexpectedly small.

ILS – Plaintiff Electronic Discovery Experts