Defendant Precluded from Using 80,000 Emails It Belatedly Produced

Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93 (D.Md. 2003)

Plaintiff filed a motion in limine to bar the defendant from calling certain witnesses based upon the defendant’s failure to produce 80,000 responsive email records until long after the discovery cut-off deadline. After making its initial rulings, and having observed that the issues presented had not yet been addressed in a published opinion in the District of Maryland, the court issued this opinion in order to provide a fuller explanation for its rulings.

The court first provided a comprehensive summary of the case law relating to the scope of discovery of electronically stored information, the duty to preserve such evidence when litigation has commenced or is imminent, and the consequences of a party’s failure to obey court orders to produce electronic records, citing many of the leading electronic discovery cases.

After describing the approaches used in McPeek, Rowe, and Zubulake, the court observed that, regardless of what test is used to determine the permissible scope of electronic discovery in a case, “the most important ingredient for the analytical process to produce a fair result is a particularization of the facts to support any challenge to discovery of electronic records.” The court continued:

The rationale for this requirement is obvious. Under Rules 26(b)(2) and 26(c), a court is provided abundant resources to tailor discovery requests to avoid unfair burden or expense and yet assure fair disclosure of important information. The options available are limited only by the court’s own imagination and the quality and quantity of the factual information provided by the parties to be used by the court in evaluating the Rule 26(b)(2) factors. The court can, for example, shift the cost, in whole or part, of burdensome and expensive Rule 34 discovery to the requesting party; it can limit the number of hours required by the producing party to search for electronic records; or it can restrict the sources that must be checked. It can delay production of electronic records in response to a Rule 34 request until after the deposition of information and technology personnel of the producing party, who can testify in detail as to the systems in place, as well as to the storage and retention of electronic records, enabling more focused and less costly discovery. A court also can require the parties to identify experts to assist in structuring a search for existing and deleted electronic data and retain such an expert on behalf of the court. But it can do none of these things in a factual vacuum, and ipse dixit assertions by counsel that requested discovery of electronic records is overbroad, burdensome or prohibitively expensive provide no help at all to the court.

219 F.R.D. at 99. The court faulted the Local Defendants for failing to provide specific facts supporting its objections to the discovery requests. It also faulted the Local Defendants for failing to preserve the electronic records of several “key players,” finding that the absence of a request by plaintiffs for a preservation order covering the material was irrelevant. “While a litigant certainly may request that an adversary agree to preserve electronic records during the pendency of a case, or even seek a court order directing that this happen, it is not required, and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information.” Id. at 100.

The court next described how its earlier Letter Order imposing Rule 37(b)(2) sanctions was ultimately modified at the hearing on the motion in limine, providing the following relief to Plaintiffs:

• Local Defendants were precluded from introducing into evidence in their case any of the 80,000 email records that were “discovered” during the last minute;
• Counsel for the Local Defendants were forbidden to use any of these email records to prepare any of their witnesses for testimony at trial, and that at trial counsel for the Local Defendants were forbidden from attempting to refresh the recollection of any of their witnesses by using any of the 80,000 undisclosed email records;
• Plaintiffs were permitted to use any of the 80,000 email records during their case and in cross-examining any of the Local Defendants witnesses;
• If the Plaintiffs incurred any additional expense and attorney’s fees in connection with reviewing the 80,000 records and analyzing them for possible use at trial, this could be recovered from the Local Defendants upon further motion to the court; and
• If, at trial, the evidence revealed additional information regarding the non-production of the email records to clear up the many uncertainties that existed as of the resolution of this issue, that the Plaintiffs were free to make a motion to the court that the failure to produce email records as ordered by this court constituted a contempt of court, under Rule 37(b)(2)(D).

Finally, the court concluded that the Local Defendants were under a duty to preserve email records at least as early as the date the lawsuit was filed and that they failed to comply with that duty. Further, from the samples of email records that were submitted as exhibits during motion practice, it was clear that the email records that were not produced were relevant to the plaintiff’s claims and that the failure to produce the email records as ordered was done with, at a minimum, a negligent state of mind. The court concluded that an adverse inference instruction, however, was not appropriate for the simple fact that it was a bench trial, and the trial judge “will be aware of these proceedings and certainly will be able to draw reasonable inferences from the Local Defendants’ failure to preserve and produce e-mail records as ordered.” 219 F.R.D. at 105.