Having trouble finding inexpensive eDiscovery technology provider ruled “unacceptable” by court in recent case

by Julia Romero Peter, Esq. 

Money Bag

In Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013), the court found plaintiff’s excuse that it was having trouble finding an “inexpensive electronic search technology provider” as an “unacceptable” reason for noncompliance with ESI orders. On June 10, 2013, pursuant to their joint supplemental Rule 26(f) Report, the parties agreed to “immediately” employ “computer-assisted search technology” to produce responsive documents, “share the specific capabilities of their proposed computer-assisted search technology”, attempt to arrive at an agreement on the parties’ search technology and utilize particular search terms.  The next day, the court adopted the parties’ e-discovery plan pursuant to a Supplemental Rule 16(b) Scheduling Order. 

On July 3, 2013, defendants’ attorney emailed plaintiff’s attorney notifying him that defendants had collected the relevant ESI and were prepared to produce it. Defendants’ attorney also asked plaintiff what method it was employing to collect documents.  Subsequently, on July 8 and July 24, 2013, defendants’ counsel reiterated his request to plaintiff with respect to how plaintiff was collecting its ESI and requested plaintiff to produce the ESI, per the joint supplemental Rule 26(f) Report.  In response, on August 6, 2013, plaintiff’s counsel informed defendants’ counsel that plaintiff’s information technology service provider was not able to collect the ESI and that plaintiff was attempting to find vendors who could.

The next day, defendants filed a motion to compel.  On August 21, 2013, plaintiff filed its response.  The court noted that plaintiff did not object to defendants’ requests, but instead just said that it was having a hard time finding an “inexpensive provider of electronic search technology to assist with discovery.”  Plaintiff failed to provide a date by which it would collect and produce the ESI, but “merely” said that it would locate an inexpensive provider “in short order.”

The court was not sympathetic.  It found plaintiff’s failure to comply “with the Court’s scheduling order and supplemental orders . . . unacceptable.”  The court stated, “A Rule 16(b) Scheduling Order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’”  The court further expounded that a scheduling order will not be changed absent “a showing of good cause pursuant to Rule 16(b).”  If the court “‘finds that the party [seeking extension] lacked due diligence, then the inquiry into good cause is ended.’”

The court noted that plaintiff should have filed a motion requesting modification of the Rule 16(b) Scheduling Order, but that nevertheless there was no demonstration of due diligence or good cause that would call for such modification.  The court further noted that actually the first  disclosures were due May 10, 2013; but at that time the parties had yet to confer and agree on the specifications of e-discovery.  As discussed above, once the parties had reached an agreement, they filed their joint supplemental report on June 10, 2013, which, again, stated that responsive documents would be produced “immediately” upon completion of the searches.  At the time of the present order, the court noted that plaintiff had not even started collecting its ESI; it was only at the stage of searching for an inexpensive vendor.  The court noted, “Plaintiffs attempts to find an inexpensive provider certainly do not constitute due diligence.”

Accordingly, the court granted defendants’ motion to enforce the parties’ document production agreement and ordered plaintiff to collect and produce documents as previously agreed upon by the parties by September 9, 2013.

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