Plaintiff Ordered to Adhere to “Document Production Agreement” Despite Difficulty Finding an “Inexpensive” Technology Provider

Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013)

Despite Plaintiff’s assertion that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” the court granted Defendants’ motion to enforce Plaintiff’s compliance with the parties’ document production agreement which, among other things, required each party to “immediately arrange to use computer-assisted search technology” in furtherance of its electronic discovery obligations and to immediately produce its search results in native format.

On June 10, 2013, the parties filed a supplement to their Rule 26(f) report indicating their agreement regarding the discovery of electronically stored information.  The parties agreed that:

Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party.  Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.

The parties also agreed to the use of certain search terms and that “[a]ll documents in the search result sets shall be produced immediately . . . in native format including all metadata.”  The plan was adopted by the court in its Supplemental Rule 16(b) Scheduling Order.

On July 3, 2013, Defendants indicated their readiness to produce and inquired regarding Plaintiff’s chosen collection method.  After two subsequent inquiries, Plaintiff’s counsel indicated on August 6, 2013, that “plaintiff’s IT provider was unable to perform the tasks necessary to collect the ESI at issue and that plaintiff was trying to locate outside providers of electronic search technology to assist” with production.  Defendants filed a motion to compel Plaintiff’s performance “as agreed by the parties.”

In its response, Plaintiff did not object to Defendants’ discovery requests, but indicated “that it [was] having difficulty locating an inexpensive provider of electronic search technology to assist with discovery.”  Plaintiff stated it would find a provider "in short order," but did not provide a date by which it would comply with it’s agreed upon obligations.

Taking up Defendants’ motion, the court concluded that “Plaintiff’s failure to comply . . . [was] unacceptable” and stated that a Scheduling Order was not a “frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.”  The court further indicated that modification of a scheduling order required “a showing of good cause” and that “[i]f the undersigned ‘finds that the party lacked due diligence, then the inquiry into good cause is ended.’”

Noting that Plaintiff “should have” filed a motion requesting modification of the Scheduling Order, the court found that “[i]n any event . . . there [was] no showing of due diligence or good cause to support a modification of the order.”  The court went on to point out that the parties had agreed that “all ESI documents returned after performing the searches . . . [would] be produced immediately,” and that “[t]o date, the plaintiff has not even begun collecting its ESI material because it is still attempting to locate an inexpensive electronic search technology provider to assist with the process.”  The court concluded that “Plaintiff’s attempts to find an inexpensive provider certainly do not constitute due diligence.”

Accordingly, the court granted Defendants’ motion to enforce the agreement and ordered Plaintiff to comply by September 9, 2013.

A copy of the court’s order is available here.

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