A party cannot hand over sole control of a document collection to a vendor, a federal district court has ruled. Peerless Indus., Inc. v. Crimson AV, LLC, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013) (Magistrate Judge Susan Cox).
The predicate for this opinion was an October 2011 order in which the court found that a nonparty named Sycamore Manufacturing had possession of documents that were within defendants’ control. According to Judge Cox, that order “required defendants to contact individuals at Sycamore and play a role in obtaining the necessary discovery.” The evidence presented to the court, however, was that “defendants took a back seat approach and instead let the process proceed through a vendor,” she said, finding that defendants had played no part in determining how Sycamore’s employees managed their documents or which documents related to opposing counsel’s requests for production.
“Such a hands-off approach is insufficient,” the court held. “Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process.”
Defendants submitted affidavits stating that everything available to Sycamore had been provided, but Judge Cox said the same affidavits had been filed in connection with an earlier motion and failed to account for all documents requested. “Defendants must show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located, they must specifically verify what it is they cannot produce,” the court said.
Judge Cox gave defendants three weeks to complete the production and ordered them to pay plaintiff’s costs to prepare the motion.
In light of this decision and our experience in document discovery, SHB suggests:
- Keep in mind that, in many ways, collections are a “pay me now or pay me later” proposition. Time invested up front in targeting a collection will not only lower the chance of a sanctions motion, it should also lower downstream costs for processing, hosting and review because fewer irrelevant documents are likely to be swept into the collection.
- Be clear in your discovery responses regarding the custodians and sources from which collection and production will be made. (If you and opposing counsel can agree on this point, so much the better.) Emphasize the value of first producing from a core group of custodians (often no more than three to five) and your willingness to meet and confer about reasonable requests to search additional sources after your opponent has reviewed the initial production.
- Be systematic and consistent in asking custodians where and how they keep their relevant documents and information.
- Remember to also ask custodians to point out the department shares, Share- Point sites, document management systems, and databases that they use to store and access relevant information. Data maps are great, but often they track many more information sources than are needed for a particular case. Accordingly, at least in some instances, data maps may work better as “verifiers” of custodians’ input than as “identifiers” consulted in a vacuum.
- As point #2 suggests, remember that precise responses to an opponent’s requests for production can ease the collection burden. Take care to (a) describe what you are willing to provide without objection; (b) specify the parts of the requests that are irrelevant to the claims and defenses in the case; and (c) explain how individual requests are overly broad and unduly burdensome.
- Be alert for opportunities to offer to produce exemplar documents that are “sufficient to show” a relevant fact. This can reduce the cost of collecting repetitive documents such as articles, monthly reports, and financial statements.