Surplus Source Group, LLC v. Mid America Engine, Inc., 2009 U.S. Dist. LEXIS 29260 (E.D. Texas 2009).

Take Away: Though producing parties often bear the brunt of adverse decisions addressing cooperation and diligence in e-discovery, these attributes are required of all parties involved. The requesting party is as responsible as the responding party in the sense that properly requesting and submitting needed search information is critical for a responding party to fulfill its own obligations.  

On April 8, 2009 United States District Judge Richard A. Schell for the Eastern District of Texas issued an opinion regarding which party would bear the costs of a third search of electronically stored information (“ESI”) in Surplus Source Group, LLC v. Mid America Engine, Inc., 2009 U.S. Dist. LEXIS 29260 (E.D. Texas 2009). The case involved a dispute about the failure to split profits within a joint venture. The Plaintiff requested documents from the Defendant, and the Defendant produced over 4,000 documents in the following months. Plaintiff alleged this production was incomplete.

In their efforts, Defendant conducted two rounds of ESI searches. The issue at hand arose from the second ESI search. On December 10, 2008 the Defendant requested additional information from the Plaintiff to conduct the second ESI search. Plaintiff responded on January 20, 2009, identifying the alleged shortcomings of the initial search, and Defendant responded that same day, requesting additional search terms for a more comprehensive search. The Plaintiff responded with search terms on February 5, 2009, by which time the second search had already been carried out pursuant to Plaintiff's January 20th response outlining the perceived shortcomings of Defendant’s first search.

The Court acknowledged that traditionally a responding party bears the cost of complying with requests. In this case, however, the Court noted that the Defendant had “shown a persistent willingness” to help Plaintiff in crafting an ESI search geared towards the documents they desired. The Court stated that Defendant had requested terms in early December of 2008, and Plaintiff did not respond until February of 2009. Further, the Court believed that had the Plaintiff responded when the search terms were requested, those terms would have been used in the second search.

Since the Court agreed with Plaintiff that the documents requested were central to the case, it allowed further discovery. Yet because the costs of this additional discovery would exceed what the discovery would have cost had the Plaintiff exercised proper diligence in responding, the Plaintiff would pay the costs of any third search up to the amount Defendant had spent on the second search. In effect, any further discovery would be predicated on the Plaintiff’s willingness, or ability, to pay for it. The discovery Plaintiff could have obtained for free with a minimum of diligence and promptness in delivering search terms, would now be carried out at its expense.

Though most often it is the duties and responsibilities of producing parties that are highlighted in decisions, Surplus Source Group, LLC shows that cooperation, diligence, and responsibility are critical on both sides of a dispute.

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