Effectively Illuminated Pathways, LLC v. Aston Martin, et al., 6:11cv34 (E.D. Tex. 10/20/11)
Judge: John Love
Holding: Discovery Order provision re: e-mails
Got another data point on the issue du jour today, and that is discovery of e-mails. As I posted a couple of weeks ago, one of Judge Everingham's last orders resolved the parties' disputes over the appropriate terms for production of e-mails in the Stambler case. Today Judge Love added one more, with language in a discovery order setting forth parameters for e-mail discovery.
In this case, during the course of negotiations over entry of an appropriate discovery order the plaintiff proposed e-mail discovery consisting of five custodians and various other provisions, and defendants proposed not having e-mail discovery pending further discussions among the parties as to whether such discovery was necessary and what the parameters should be. The model e-discovery order was noted but not proposed by either side as an appropriate resolutions of the issue in this case.
The day after the parties' dispute was raised in the motion for entry of discovery order, Judge Love set a phone hearing on the issue, and following the hearing directed the parties to submit an order reflecting his rulings. The parties submitted the following language which Judge Love included in the discovery order signed earlier today.
No party shall be obligated to search for or produce e-mail in this case as part of its initial production pursuant to Paragraph 2 of the Discovery Order. After the initial production under Paragraph 2, a party may request that the e-mail of up to five custodians for each party be searched and produced, with the searching to be done in the most efficient way possible with the fewest and most relevant search terms. The requesting party and the producing party shall meet and confer to determine the most efficient method for searching each custodian’s e-mail. If an agreement cannot be reached, the requesting party may seek relief from the Court.
A few points about the order:
- As in Stambler, e-discovery is separated from general disclosures, although unlike Stambler this case involved Judge Davis/Love's standard document disclosure provision (Par. 2 disclosures) which requires disclosure of all document "relevant to the pleaded claims and defenses" (see CV-26(d) for some guidance on that).
- Unlike Stambler there is not a date for compliance.
- Sort of like Stambler, discovery is permitted for "up to" five custodians, but unlike Stambler, here the plaintiff had agreed to the five.
- Some guidance is provided for searches, i.e. the parties were directed to use "the most efficient way possible with the fewest and most relevant search terms."
- The parties are required to meet and confer and return if they can't work things out.
- Unlike Stambler there isn't a provision that additional searching was on a "good cause" basis.
