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You Want to Review ESI that the Other Side has Deemed Nonresponsive? That’ll Be Extra

Have you ever thought your adversary was withholding relevant ESI from document production? Have you wanted to look at the withheld documents to show that some are indeed relevant? Well, you might be able to – but it’ll cost you. In Nachurs Alpine Solutions, Corp. v. Banks, an Iowa District Court recently ordered that documents deemed nonresponsive by Defendants and withheld from production be produced to Plaintiff, but that Plaintiff would have to bear its own costs of reviewing them.

Plaintiff alleged, in the underlying case, that Defendant Banks took confidential trade secret information from Plaintiff and provided it to his new employer, Defendant Nutra-Flo. Discovery began, and a dispute ensued regarding the search and production of electronically stored information (ESI). The Court entered an order so that Defendants used approved search terms to search their ESI for documents containing those terms. Defendants then reviewed those documents for privilege, duplication, and relevance.

Defendants made two productions of ESI with privilege logs, as well as nonresponsive placer sheets for 235 documents in the second production. Later, Plaintiff discovered there were more than 44,000 other documents that Defendants had withheld from the first batch of production because they were nonresponsive. Following a conference call with the Court, Defendants agreed to produce documents withheld from the second production for nonresponsiveness based on the conditions that the documents be designated as “Attorneys Eyes Only” and that the production would not serve as an admission that the documents were responsive. The parties could not agree on what to do with the other documents Defendants had withheld as nonresponsive.

Plaintiff reviewed the privilege logs and believed Defendants withheld a substantial number of documents that were relevant. Plaintiff sought an order compelling Defendants to produce unresponsive documents with Defendants paying for the cost of culling through them for responsive documents. Defendants argued this would amount to having the Court throw out the original ESI order and establish a brand new one. Further, Defendants argue that Plaintiff had obtained the information it sought through other means such as depositions, requests for production of documents, and interrogatories.

The Court found there was a colorable prima facie showing that the withheld documents fell within the broad scope of discovery since they contained one of the search terms agreed upon to locate potentially relevant documents in Defendants’ ESI. The Court noted, however, that Plaintiff’s belief that at least some of the nonresponsive documents were relevant was not well supported as the few examples it identified had been shown by Defendants not to be relevant or already produced.

The Court found that it would be disproportional to require Defendants to look back through the documents to identify those that Plaintiff believed were relevant. The Court acknowledged that Defendants were likely unwilling to produce all of its withheld documents to Plaintiff to review because of the associated attorney’s fees Plaintiff requested for culling through the documents. Ultimately, the Court came up with a compromise to resolve this dispute. The Court ordered: (1) Defendants produce all the ESI documents it identified as unresponsive, to be designated as “Attorneys Eyes Only”; (2) the production is not deemed as an admission by Defendants that the documents are relevant; and (3) Plaintiff must bear its own costs of reviewing the documents in search of those it believes are relevant. The Court stated that if Plaintiff discovers relevant documents during its review that it believes were wrongly withheld by Defendants, then it can bring a motion for sanctions to recover some or all of the attorney fee’s incurred by the search.

This case opens the door for a party who believes that its adversary is withholding relevant documents to obtain the documents and determine itself whether they are relevant. While a court may allow a party to review these withheld documents, the party will likely have to bear its own costs of reviewing them.

© 2017 Proskauer Rose LLP.

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About this Author

Associate

Kristen Jones is an associate in the Litigation Department.

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