Jason Atchley: Jason Atchley : eDiscovey : Plaintiff's Failure to Communicate with Defendants Causes Complications in Discovery

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Plaintiff’s Failure to Communicate with Defendants Causes Complications in Discovery – eDiscovery Case Law

May 19, 2014

By Doug Austin

In Procaps S.A. v. Patheon Inc., 12-24356-CIV-GOODMAN, 2014 U.S. Dist. (S.D. Fla. Mar. 18, 2014), the defendants filed a Motion to Compel over search terms for Electronically Stored Information (ESI), after the lead counsel for the plaintiffs repeatedly demonstrated uncooperative behavior by not responding to emails sent by defendants’ counsel, or responding with brief and unclear messages.

This discovery dispute arose after Florida District Judge Jonathan Goodman granted the defendants’ motion for a forensic analysis of the plaintiffs’ electronic media. Several reasons were given for granting the motion, among them the fact that the plaintiffs’ personnel had been permitted to self-search for ESI without context – the employees had neither seen the defendants’ discovery requests, nor been given a list of search terms. Judge Goodman ordered that both parties agree to a preliminary list of search terms.

Following this order, counsel for the plaintiffs produced a list of eight search terms, in English, along with an advisory that the plaintiffs could “confer with our clients as to appropriate Spanish translation.” This was problematic because the plaintiffs’ business is headquartered in Columbia, and while some of its employees speak both English and Spanish, others speak only Spanish.

The defendants responded that the counsel’s proposal with the absence of Spanish search terms and a suggestion to translate the terms post-agreement was “patently unreasonable,” and further stressed that “perhaps most troubling is that it doesn’t appear these terms were discussed with [plaintiffs’] employees in order to determine what words and phrases they use.”

Counsel for the defendants attempted to reach the plaintiffs’ lead counsel with regards to this matter, first through a phone call, and then through an email follow-up that summarized the call, stating in part: “this confirms…[plaintiff] does not agree that it has an obligation to come up with search terms with input from [plaintiffs’] custodians about the words and abbreviations they use, and that [plaintiff] will not suggest any search terms other than the eight search terms it proposed.” The counsel for the plaintiff replied with a single-line email: “I do not believe your characterization of our position is accurate.” A response from the defendants’ counsel asking for clarification on which of the two points in the original email counsel believed to be inaccurate went unanswered.

Several further emails were sent, to which the plaintiffs’ counsel either did not respond, or responded with brief messages that did not address all the points questioned by defendants’ counsel. Due to the lack of communication regarding whether the plaintiffs’ counsel would confer with their clients regarding search terms, the defendants filed a Motion to Compel.

Judge Goodman held a multi-hour hearing with the parties, during which the plaintiffs’ counsel alleged that the defendants’ counsel had a history of “incorrectly summarize(ing) telephone conversations,” and further that the defendants were “seeking to engage in an ‘e-mail war,’ that email is being used ‘as a tool to gain an advantage’ and that [defendants’ emails] were an ‘ambush attempt’ and that he was not going to ‘get trapped into this kind of tactic’.” Additionally, counsel asserted that they had already been in communication with the plaintiffs’ ESI custodians, detailing in an affidavit that attorneys for the plaintiffs had spoken to a total of 24 custodians currently employed by the plaintiffs, as well as two former custodians, regarding search terms and ESI that was reasonably likely to contain relevant information.

Upon review of the affidavit and testimony, it was found that the plaintiffs’ counsel had first communicated with ESI custodians regarding search terms only on the day after the defendants had filed the Motion to Compel, and that the discussion outlined in the affidavit had taken place during the week after the motion had been filed. Therefore, the search terms had not in fact been discussed with the plaintiffs’ ESI custodians at the time of the email exchanges, contrary to what counsel had indicated.

Despite having ultimately arranged for the appropriate persons to provide search term input, Judge Goodman awarded attorney’s fees to the defendants in the amount of $3,750, with $1,000 of the fees to be paid personally by the lead counsel for the plaintiff due to his non-communication. It was stressed that this award was for fee-shifting purposes, and not intended as a sanction.

So, what do you think? Should apparent refusal to communicate provide grounds for sanctioning during the discovery process? Please share any comments you might have or if you’d like to know more about a particular topic.

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