Discovery: Reasonableness Reigns, Not Perfection

March 9, 2018

Firefighters’ Ret. Sys. v. Citco Grp. Ltd., Civ. Action 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 594 (Jan. 3, 2018 M.D.La.) is a good example of plaintiffs getting too greedy, and where proportionality and reasonableness ultimately carried the day.

In this case involving a $100 million investment loss, plaintiffs and defendants agreed to custodians and search terms at the outset. Post-document production, the plaintiffs filed a motion to compel based on their concerns about how information was gathered to respond to discovery. The court ordered a 30(b)(6) deposition of the defendant, Citco Group, to cover the collection and production of documents.

After the deposition, the plaintiffs renewed their motion to compel, asserting that incomplete and inaccurate information resulted in “a flawed list of custodians” and a “flawed search for documents.” The plaintiffs requested, among other things, that the defendants send an email questionnaire to all Citco employees to determine if the current custodian list was comprehensive and to collect additional data.

The defendants argued that granting the motion would “ignore the substantial discovery efforts already made in the case” and that “additional searches based on an email questionnaire to all employees would be disproportional to the needs of this case.” The defendants collected data for 21 agreed-upon custodians from the following sources: shared drives, hard-copy documents, and email data hitting on 56 agreed-upon search terms. The defendants also were willing to review and supplement their responses where appropriate and discuss any additional custodians the plaintiffs identified.

The court found it unreasonable for the plaintiffs to ask the defendants to conduct additional searches for documents after the parties had agreed to the custodians and search terms, especially when the plaintiffs failed to explain why the additional information was necessary. The court noted that the burden lies with the requesting party to show that the responding party’s search was inadequate. Since the plaintiffs refused to provide specific terms and custodians, the court found that they “have not explained why the custodians and search terms used were unreasonable.” The court added that “a large scale search raises proportionality concerns and, especially in light of the parties’ previous agreements and efforts, would be unduly burdensome.”

The standard is not to ensure that every potentially responsive document (no matter how cumulative or burdensome to obtain) should be produced. “Courts cannot and do not expect that any party can meet a standard of perfection.” The plaintiffs failed to identify additional custodians or search terms and failed to identify specifically why the defendants’ efforts were deficient. For these reasons, the court found the plaintiffs’ request unreasonable and denied the renewed motion to compel.

Practical takeaway: Motions to compel should not be brought without serious consideration and a valid and important rationale.

Key Considerations for Filing Motions to Compel

  • Reasonableness — Can you point to specific deficiencies in the responding party’s process or production that impact the case? Can the responding party show that what has been done was reasonable?
  • Proportionality — Is the request proportional to the needs of the case?
  • Cooperation — Have you been cooperative with opposing counsel? Have you gone through a meaningful meet-and-confer process and been open to suggestions from opposing counsel?
  • Specificity — Is the material requested specific in scope or is it an overly broad request?