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.)
The court also considered plaintiff’s request for open access to Kmart’s home office databases. The court cited In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003) — another case where a party sought direct access to an adversary’s internal databases. There, the Eleventh Circuit stated that Fed. R. Civ. P. 34 does not generally give the requesting party right to search the responding party’s records. Stating that the validity of the Ford decision had not been disturbed by the 2006 amendments to the Federal Rules of Civil Procedure related to discovery of ESI, the court concluded that direct access to Kmart’s databases by plaintiff was not warranted at this juncture:
In an instance where the responding party has acted improperly, the court may, in its discretion and to preserve discoverable information, respond accordingly. The plaintiff has produced no evidence demonstrating that Kmart has acted improperly. As such, this court will not provide the plaintiff with unfettered access to Kmart’s computer databases. Should additional intervention be required at a later time, the court will consider what measures should be undertaken concerning Kmart’s computer systems and the plaintiff’s access to them.
Finally the court addressed plaintiff’s request that the court provide jury instructions on spoliation. The court declined to do so, noting “[a]t this point, discovery still progresses; there is no evidence demonstrating bad faith on Kmart’s behalf; and, such an extraordinary relief is hardly warranted here.” Again pointing to the lack of evidence of any nefarious or bad faith conduct by Kmart, the court concluded by ordering that each party would bear their own costs associated with the motion.