Federal Court Decisions Involving Electronic Discovery, December 1 ...

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
parties to “focus first on the issue of class certification.” The parties did so, and the
defendants produced numerous documents in hard copy format. However, after the
plaintiffs learned that ESI existed, they proposed search terms for the defendants to apply
to the e-mail of designated employees as well as shared servers. The defendants opposed,
arguing that the earlier bifurcation and direction had foreclosed discovery of ESI. The
court disagreed, noting that once gaps in the hard copy production had been disclosed,
consideration of e-discovery became appropriate. The court also rejected the defendants’
argument that they had produced “enough” discovery for the class certification phase.
The defendants then attempted to rely on Fed. R. Civ. P. 26(b)(2)(B), alleging that, even
if the plaintiffs limited their requests, some 48 gigabytes of ESI would have to be
searched. Although the court found that the affidavit submitted in support of the
defendants’ argument – that of “an attorney and not an expert on document search and
retrieval” – was not compelling, the court limited the search terms in an effort to control
costs and invited the defendants to renew their objections with specificity if the burden
and costs issues remained.
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