eDiscovery Daily Blog

• November 29, 2018

In Dunne v. Resource Converting, LLC et al., No. 4:16 CV 1351 DDN (E.D. Mo. Oct. 30, 2018), Missouri Magistrate Judge David D. Nocel granted the plaintiff’s motion to compel and to enforce, ordering the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production”.  Judge Nocel also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel, but decided that the plaintiff’s request for an independent forensic expert to preside over the technical discovery requests and responses was not warranted at this time.

Case Background

In this dispute, this Court issued an order in November 2017 granting plaintiff’s motion to compel the production of discovery documents post-dating August 21, 2015.  The plaintiff alleged that counsel for the defendants Resource Converting, LLC, Tim Danley, and Rick Kersey (“the RCI defendants”) improperly advised the RCI defendants not to search for such documents; subsequently, the Court set a compliance deadline requiring the RCI defendants to respond by December 6, 2017 and the RCI defendants then produced 24,196 pages of documents on that date.

Nonetheless, the plaintiff filed a motion, arguing that the RCI defendants had still not complied with this Court’s order, by: (1) failing to adequately search for and produce key documents, or in the alternative by deliberately removing them; (2) deliberately producing documents of an inferior quality, such that some of them are effectively illegible; (3) artificially inflating the number of documents produced and the cost to plaintiff incurred in reviewing them by producing the exact same documents multiple times; and (4) “providing vague supplemental responses to [plaintiff’s] specific requests that simply tell [plaintiff] to go fish in 24,000 pages of documents.”. The plaintiff provided unproduced email correspondence between a non-party and the RCI defendants to substantiate claim #1 above and also argued that the RCI defendants withheld insurance agreements applicable to the litigation, correspondence with their insurers, and materials related to changes to its website.  In response, the RCI defendants described the plaintiff’s motion as a “scorched-earth discovery battle” with “patently false” allegations.

Judge’s Ruling

With regard to the absence of key documents, Judge Nocel stated: “Plaintiff requests that the Court appoint an independent forensic expert to preside over the technical discovery requests and responses, as authorized by Federal Rule of Evidence 706. The parties have had several opportunities for discovery in several venues and from parties and nonparties alike, and, considering the proportionality of the Federal Rules of Civil Procedure to the needs of the case, the Court is not convinced that an independent forensic expert is warranted at this time…The RCI defendants are still obligated to supplement their production with any documents that are responsive to plaintiff’s requests, id. at (e), and they must disclose any relevant insurance agreements.”

As for the claim of inferior document quality, Judge Nocel did agree with the plaintiff that the “files were heavily pixelated to an extent that, to the Court’s perception, made some files difficult to read and others effectively illegible”.  But, he also indicated that the RCI defendants did produce the original native documents “in color, high-quality form”, “in the form of .mbox files”, but that “the .mbox file-type is not compatible with commonly-used document-review programs” and that those native files “are not bates-stamped, and so they do not correspond to the files for which plaintiff’s counsel has already spent hours reviewing and notating”.  As a result, Judge Nocel ordered the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production” and also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel.

So, what do you think?  Should the defendants have had to resubmit the production?  And, should the Court have granted appointment of an independent forensic expert?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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