Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007)
In this order, the court considered plaintiff’s motion to compel Kmart to respond to several discovery requests. The court granted the motion in part, and denied it in part.
Two of the issues considered by the court touched directly on the discovery of electronically stored information (“ESI”). One of plaintiff’s complaints in the motion was the dearth information produced by Kmart in response to a particular set of RFPs. The court observed that while counsel must make a reasonable effort to ensure their client has produced all the documents responsive to a discovery request, “a party cannot be expected to produce information that no longer exists.” The court found that the affidavits submitted by Kmart describing their unsuccessful efforts to locate tangible items at various store locations indicated “no evidence that Kmart has failed to make a diligent search,” and declined to order additional searches for tangible items. However, after noting that Kmart was also obligated to produce ESI relevant to the requests at issue, the court found that Kmart’s efforts in that regard were less clear, and ordered additional steps be undertaken:
It is less clear whether Kmart acted with similar diligence in search its electronically stored information. In fact, Kmart mentions very little about whether it conducted searches in its various computer systems for documents responsive to the various discovery requests. Absent some valid objection, it is clear that Kmart must produce electronically stored information, if it exists, responsive to the plaintiff’s discovery request.
At this point, without nothing more from Kmart on this matter, the court will compel its production of electronically stored information responsive to plaintiff’s various requests. Once again, Kmart will conduct a thorough search of its computer systems and will provide the plaintiff with any electronically stored information responsive to the request or, alternatively, with responses (and accompanying affidavits, if necessary) demonstrating its diligent search of its computer systems.
(Italics in original.)