September 28, 2016 Practice Points

Need for ESI Discovery Trumps Objections, Especially Where Claims and Defenses Overlap

In the ongoing battle between plaintiffs seeking ESI discovery and defendants resisting these attempts, the plaintiffs have tallied an interesting win.

By Kenneth J. Duvall

In the ongoing battle between plaintiffs seeking ESI discovery and defendants resisting these attempts, the plaintiffs have tallied an interesting win.  See Labrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL (W.D. Mo. May 9, 2016).  The defendant, State Farm, argued that it could not answer certain interrogatories for multiple reasons, but the court rejected each of them in turn.

First, State Farm argued that the time and cost of matching up information in one database with the information in another were prohibitive.  But the court found that claim "incredible," observing that "data sorting is what computers do in much higher levels in very short amounts of time."

Second, State Farm refused access to its computer system based on proprietary concerns.  But the court turned this justification against State Farm, finding that "[a] litigant cannot keep its own system secret and then refuse to gather the information itself."

Third, the court noted that much of the information that plaintiffs sought in the interrogatories overlapped with information that State Farm would need to collect to support its own affirmative defenses.  As such, the court would not hear State Farm’s complaint about collecting this double-duty information.

Like any discovery disputes, the rulings in Labrier may or may not apply to your case.  The court in Labrier did appear to have lost patience with State Farm and was ready to grant the motion to compel.  Still, some general lessons can be taken from this case.

First, courts may not be as sympathetic to cost concerns for ESI as one might think in the new proportionality-centric era, as courts know that computers can match data and run some searches with great speed.  Second, a defendant cannot have it both ways when it comes to searches of internal systems: One must either gather the information oneself, or let the other party in.  And finally, where the plaintiff's claims and the defendant's defenses overlap, the court might be particularly willing to grant a motion to compel for materials within that overlap.  As solace, though, a defendant should remember that such reasoning goes both ways.


Kenneth J. Duvall is with Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida.


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