D.D.C.: Notice to Court of E-Discovery Search Problems Excuses 8 Day Delay in ESI Request Response

Earlier this month, Magistrate Judge Deborah A. Robinson issued a decision, Ronaldson v. Nat'l Ass'n of Home Builders, No. 19-01034, 2020 U.S. Dist. LEXIS 107436 (D.D.C. June 3, 2020), granting in part and denying in part, the Plaintiff's motion to compel. Ronaldson contested the Defendant's objections to its discovery requests. The Defendant produced unindexed pages of emails, which Ronaldson said prevented it from determining if their request had been responded to.

The Court found that while the Defendant's responses to Ronaldson's discovery requests were 8 days late, the delay was excusable in part because the Court was notified about problems with an e-discovery search. Judge Robinson held that while it was a close question, the Defendant did not waive its right to object.

Nearly all of the Defendant's objections contended that the discovery requests were overboard; not reasonably calculated to lead to the discovery of admissible evidence; and exceeding the scope of permissible discovery in the litigation. Ronaldson argued that this made the objections merely 'boilerplate', but Judge Robinson found that the objections made specific arguments about the relevance of requested evidence. Judge Robinson did however find that objections made on the basis of proportionality were waived because of a failure to submit evidence supporting the burden for this kind of objection.

The Court ordered the Defendant to supplement its email production in order to comply with the requirement of Fed. R. Civ. P. 34(b) that they be in the form in which they were originally maintained and label them pursuant to each category in the request. Fed. R. Civ. P. 34(b)(2)(E)(i), and Fed. R. Civ. P. 34(b)(2)(E)(ii) which specify these two requirements should be read to be supplementary and not as alternatives. "Defendant also represented that it had modified the emails to provide Bates numbering. Thus, Defendant's production of the emails did not 'replicate[] the manner in which they were originally kept' and Defendant was required to 'label them to correspond to the categories in the request[.]' Fed. R. Civ. P. 34(b)(2)(E)(i). Defendant shall supplement its electronic discovery responses to comply with this requirement." Ronaldson, 2020 U.S. Dist. LEXIS 107436, at *27.

Fed. R. Civ. P. 34 also requires that a party state the basis of the objection under which ESI or documents are withheld. Judge Robinson ordered that, "[d]efendant shall supplement its written and electronic discovery objections to include 'whether any responsive materials are being withheld on the basis of that objection.' Fed. R. Civ. P. 34(b)(2)(C)." Id. at *28.