Here’s a case that’ll really make you sick… but only because it involves an “alleged shipment of contaminated beef”. (Sad Trombone Dot Com). While there are a handful of interesting eDiscovery issues discussed in an opinion from earlier this month, including relevance and privilege, the most discussion-worthy part of the opinion concerns the volume of discovery. Specifically, plaintiff Cargill argues that, because defendant Greater Omaha Packing Company (GOPAC) responded to a request for production with a small number of documents, GOPAC must be withholding additional responsive documents. Or, in the more-eloquent words of the Court:
Cargill seeks an order from the Court compelling the production of e-mails and other electronically stored information that have allegedly been withheld. However, Cargill has failed to identify a specific e-mail or electronic record that GOPAC is refusing to produce. Rather, Cargill argues that the small number of e-mails produced (25) evidences a lack of diligence in production.
Cargill’s “fail[ure] to identify” any specific missing records, is a problem, especially since GOPAC had already “assured the Court that it ha[d] turned over all ESI that its searches produced and continues to supplement as it finds additional information.” In short, ”the Court cannot compel the production of information that does not exist.”
Still, the matter isn’t that easily resolved. Recognizing that GOPAC may possibly be sitting on more ESI, the Court orders “GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used.” But, given the absence of anything concrete from Cargill, no further action is deemed necessary at the time being.
What do we learn from this? Volume of production alone isn’t sufficient evidence that an opponent is trying to hoodwink you.