Courts continue to encourage parties to cooperate in crafting search protocols, to utilize a phased approach to production, and to consider proportionality in order to control costs and conserve judicial resources. Courts focus on efficient and transparent discovery rather than allowing inefficient or wasteful searching or retrieval from inaccessible locations. Parties must also be sure to document their search efforts and be sure these efforts are legally defensible to avoid expensive discovery on their methods and the risk of sanctions if the efforts were unreasonable.

In Ace USA v. Union Pac. R.R. Co., Inc., 2011 WL 3101808 (D. Kan. Jul. 25, 2011), Magistrate David J. Waxse granted monetary sanctions against a plaintiff who produced a witness for a Rule 30(b)(6) deposition who was unprepared to discuss, inter alia, issues concerning the plaintiff’s ESI. The defendant had served a Notice of Rule 30(b)(6) Deposition listing fourteen subjects, including electronic discovery. The plaintiff objected at first, and then later agreed to the deposition; but the proffered witness was unprepared to answer questions pertaining to numerous topics, including electronic discovery. The defendant subsequently moved to compel the deposition of a properly prepared individual and for sanctions.

Magistrate Waxse held that while the selection of a non-employee is permitted by federal rules, the party must prepare the non-employee on the topics in the deposition notice. Magistrate Waxse noted that the proffered witness was not prepared to testify to: (1) the steps the plaintiff took to recover electronic documents; (2) where the plaintiff searched for electronic documents; or (3) whether there had been any searching of e-mail databases for responsive documents. In addition to ordering another deposition, Magistrate Waxse ordered that the Plaintiff pay the defendant’s reasonable attorney’s fees and expenses incurred in traveling to and taking the original deposition.