Alabama Court Demands Compliance With ESI Production Agreement

Northstar Marine, Inc. v. Huffman, CA 13-00037-WS-C (S.D. Ala. Aug. 27, 2013)

The United States District Court for the Southern District of Alabama held that plaintiff was required to comply with the parties’ Rule 26(f) agreement regarding eDiscovery and document production. Plaintiff stated it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”. Defendants’ motion to compel was granted, and the court held that plaintiff must adhere to the terms of the agreement.

The case stemmed from a cleanup contract related to the 2010 BP oil spill in the Gulf of Mexico. In its complaint, plaintiff demanded $1,000,000 in damages, and defendants filed a counterclaim. On June 10, 2013, the parties filed a supplement to their Rule 26(f) Report setting forth their agreements with regard to ESI. Among other things, the parties agreed that:

Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party. Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.

In addition, the parties agreed to use certain search terms and agreed that “[a]ll documents in the search result sets shall be produced immediately to the other side in native format including all metadata.” The plan was adopted by the court in its Supplemental Rule 16(b) Scheduling Order.

On July 3, 2013 defendants stated they were ready to produce their collected ESI. Defendants emailed plaintiff twice asking for information about plaintiff’s collection method and for plaintiff’s collected ESI. Nearly one month later, plaintiff’s counsel admitted that plaintiff’s IT provider was unable to perform the tasks necessary to collect the information at issue and plaintiff was trying to locate outside providers of electronic search technology to assist with production. Defendants filed a motion to compel plaintiff’s document collection and production as specified in the supplemental agreement.

Plaintiff did not object to the discovery requests, but stated it was “having difficulty locating an inexpensive provider of electronic search technology to assist with plaintiff’s ESI discovery”. Plaintiff did not state when it would produce the requested ESI, but merely stated it would find a service provider “in short order”.

The court stated in no uncertain terms that plaintiff’s failure to comply with the very specific scheduling order was unacceptable. While the parties had agreed to collect and produce ESI immediately, plaintiff had not even begun collection due to failure to locate a cheap enough vendor (although plaintiff had received a vendor quote of $3,000 in a $1,000,000 case). The court also chastised plaintiff for its failure to exercise due diligence in adhering to the terms of the scheduling order and gave plaintiff two weeks to comply. 

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