Outside Counsel Has Obligation To Investigate eDiscovery Production Gaps

The United States District Court for the Northern District of California recently granted a motion to compel the production of responsive documents and indicated that hiring an eDiscovery vendor may be ordered if production of said documents remains problematic.

Plaintiff, A shareholder in pharmaceutical company IKOR, Inc., sued the company and two of its officers alleging principally that IKOR made misrepresentations to induce plaintiff to invest. Defendants were asked to obey a prior court order to produce all responsive electronic documents, which they stated were still being located via an adequate search process. The three defendants provided 121 emails, of which 109 were communications with the plaintiff. The defendants also produced just 3 pages related to communications with a company run by three of IKOR’s principals.

Defendants acknowledged that prior productions were incomplete and lacked timeliness. Defendants also stated they were, at the time of oral argument, reviewing an additional 10,000 documents recovered during a later search of the same sources. The court acknowledged worries regarding the “inadequacy of defendants’ search” and stated:

Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete. Therefore, where, as here, counsel notices obvious “gaps in the production” of documents by his clients, he is obligated to make a reasonable inquiry as to the thoroughness of that search.


The court ordered defendants to produce all remaining responsive documents and to supplement their responses to interrogatories. The court also stated:

Defendants are on notice that if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor and order the parties to submit sworn, detailed declarations regarding their document preservation and collection efforts.


Elijah’s state-of-the-art eDiscovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s eDiscovery solutions please visithttp://www.elijaht.com/ediscovery, for general information visit www.elijaht.com, and to contact one of our ESI experts call 866-354-5240 or email info@elijaht.com.