Court Approves Responding Party's Limited Production for Overbroad E-Discovery Request

Posted on September 6, 2006 by K&L Gates

Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006)

In this wrongful termination lawsuit, plaintiff sought production of “All emails with attachments sent or received by anyone at the school since 1-1-97.” Defendants objected that the request was vague, ambiguous, overly broad, unduly burdensome, oppressive, and would encompass matters not relevant to the litigation. Notwithstanding their objections, defendants subsequently produced all existing emails sent to or from the plaintiff, or pertaining to plaintiff's performance during the time period at issue.

Plaintiff moved to compel, taking issue with not only the limited number of emails produced, but also the fact that they were produced in a disorganized fashion, in printed form, rather than in a word-searchable electronic form as requested. Plaintiff argued that modern technology should enable a relatively easy word search of all emails. Plaintiff further complained that the School District failed in preserving relevant evidence. The School District’s email server automatically removed emails not saved by the recipient to a specific folder after 14 days, and then deleted them 10 days later. Plaintiff argued that the School District was anticipating litigation at least as early as October 2004, they should have altered their normal document retention policies accordingly, and should now show cause for not doing so.

The court concluded that the request was overbroad, and on that basis alone it would not compel the defendants to comply with it. The court further stated:  

The Court does not doubt that modern technology would lessen the burden of searching for relevant emails, but the search would undoubtedly not be perfect. Plaintiff hopes to cull out emails that show her doing her job, problem solving and interacting well with her colleagues. Nevertheless, emails are not the only manner of proving those things. In any event, according to Superintendent Hawkins' declaration, it appears that defendants have made a reasonable attempt to provide responsive emails that are still in existence, so plaintiff has been provided with more materials than she is rightfully entitled to.

The court denied plaintiff’s motion for an order to show cause:

Insofar as plaintiff asserts that the defendants should have altered their usual document retention practices as early as October 2004 because they anticipated litigation, plaintiff relies on case law from the Southern District of New York, which is not controlling on this Court. Furthermore, the Court does not perceive that the defendants should have reasonably anticipated litigation as early as October 2004, which was even before plaintiff took FMLA leave, and before the Board decided to replace plaintiff in March 2005. In addition, it is not reasonable for the defendants to have foreseen that all e-mails would be relevant to plaintiff's situation. Therefore, the defendants need not produce anything more in response to Request No. 19.

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