Discovery disputes are a common battleground in litigation, and a recent decision in Sectra Commc’ns AB v. Absolute Software, Inc., 2024 U.S. Dist. LEXIS 93515 (W.D. Wash. May 24, 2024) underscores the importance of adhering to discovery obligations, especially as cases evolve.
In Sectra Commc’ns AB, the plaintiff alleged claims primarily for patent infringement, false advertising, and trade libel. At the beginning of the case, the parties agreed to an electronically stored information (ESI) protocol in which the defendant identified several ESI custodians and the parties agreed on search terms. As part of that agreement, the plaintiff represented that it would not pursue a motion to compel additional custodians. No issues at that point.
But as discovery progressed, the plaintiff learned new information about the defendant’s alleged wrongdoing and filed an amended complaint to add several new claims, including business defamation, tortious interference, and breach of contract. The plaintiff also served additional discovery requests for ESI and subsequently moved to compel production. The defendant opposed the request on the grounds that it already complied with its discovery obligation under the ESI protocol.
The court agreed with the plaintiff, pointing out that discovery practices must evolve with the case. Since the claims had expanded, a more thorough search for relevant documents was necessary. The court held that “Plaintiff’s agreement to not file a motion to compel all predates the addition of new claims in this case. This necessarily expanded the scope of discovery and made a larger search more reasonable and proportional to the needs of the case.” The court added that Rule 24 does not permit a party “to use an outdated ESI Order to sidestep the requirement to conduct a reasonable search for responsive documents.”
Sectra Commc’ns AB v. Absolute Software, Inc. serves as an important reminder that discovery obligations are dynamic and must be adapted as cases progress. If circumstances change, such as the introduction of new claims, parties need to adapt their discovery practices accordingly.
