Court Orders Production to Plaintiff”s Expert for Keyword Search

Tulip Computers Int’l B.V. v. Dell Computer Corp., 2002 WL 818061, 52 Fed.R.Serv.3d 1420 (D.Del. 2002)

Plaintiff brought a motion to compel and a motion for sanctions based on numerous discovery disputes relating to hard copy and electronic material. Plaintiff complained that, among other things, defendant had failed to produce any email or electronic documents for any senior employees. Defendant argued that it had circulated plaintiff’s document requests to over 300 employees, and all responsive documents had been produced. 2002 WL 818061, at *4.

Granting plaintiff’s request for additional email discovery, the court explained:

The history of Dell’s failures to cooperate in the discovery process – and its sweeping but inaccurate positions that Tulip would never find certain documents that Tulip, through persistence and diligence, later uncovered – counsel in favor of awarding Tulip some relief that allows them to ascertain for themselves whether Dell’s representations that all responsive documents have been produced are accurate. Moreover, counsel for Dell could not represent to the court that it has thoroughly searched these e-mail records for responsive information.

Id. at *7. The court adopted the protocol suggested by plaintiff, and ordered defendant to provide email of selected executives in electronic form to plaintiff’s computer expert. The expert would then search the email using the parties’ agreed-upon search terms, and provide defendant a list of the emails retrieved. Defendant would then produce the email subject to its own review for privilege and confidentiality designations. Id.

Plaintiff also complained about defendant’s conduct with respect to discovery of defendant’s databases. Defendant initially stated it did not have the ability to conduct plaintiff’s requested search, but agreed to make the database available to plaintiff’s expert. Later discussions with the data warehouse manager revealed that the information plaintiff had been requesting for nearly a year was, in fact, available, and existing search queries could have been used to cull the requested information from the database system. The court criticized defendant for its inaccurate representations, stating that defendant’s conduct in discovery “indicates either a failure to take its discovery obligations with the required degree of seriousness and diligence or an extreme lack of knowledge and control over its own files and procedures.” Id. at *6.

Lastly, plaintiff contended that defendant had failed to adequately prepare a knowledgeable Rule 30(b)(6) witness to give testimony on issues relating to the production, preservation and destruction of documents. The court directed defendant to work diligently to ensure that plaintiff receives the information, either through deposition, the production of documents, or interrogatories. It concluded that, while defendant’s conduct was not deserving of sanctions, defendant would be responsible for the costs of another deposition if it were required. Id. at *8.