United States: Court Compels Production Of Documents Withheld As Nonresponsive, Orders Requesting Party To Bear Costs Of Re-Review

Last Updated: August 9 2017
Article by K&L Gates

Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017)

In this case, Defendants identified a number of potentially responsive documents by conducting a search with court-approved terms. Upon review of those documents, many were withheld from production as nonresponsive. When Plaintiff sought to compel production of additional documents it suspected were relevant, the court granted the request, but shifted the burden of reviewing the withheld documents to Plaintiff, including cost.

In this case, Defendants used search terms approved in the court's ESI order to identify potentially responsive documents and then reviewed those documents for privilege, duplication and relevance. Many thousands of documents were withheld from production as not responsive. When Plaintiff "took issue," Defendants eventually produced a log of all documents withheld as nonresponsive and also agreed to produce a number of those documents with conditions, including that they be designated Attorneys Eyes Only and that production "would not serve as an admission that the documents were responsive." However, Defendants refused to produce all nonresponsive documents.

Based on the log provided, Plaintiff identified four categories of documents it believed were relevant and sought to compel Defendants to produce them, "with defendants to bear the costs of sifting through the withheld documents." Alternatively, Plaintiff requested that Defendants be ordered to produce all withheld documents and to pay the attorneys fees for Plaintiff's costs to review them. In support of its motion, Plaintiff provided a number of examples that it believed would be relevant based on the information contained in the log. As to each, Defendants demonstrated that the document was either irrelevant or had already been produced. Defendants also argued that Plaintiff's motion amounted to a request for a second review and that the request was disproportional to the needs of the case. In reply, Plaintiff argued, among other things, that the "only logical reason" for Defendants' refusal to provide Plaintiff with the nonresponisve documents to review was that there was something they did not want Plaintiff to find.

Taking up the motion, the court acknowledged the need to assess the proportionality of the request and that Plaintiff needed to make a threshold showing that the information sought was within the scope of discovery before the burden shifted to Defendants to resist the motion. Turning to the facts before it, the court reasoned that there was "at least a colorable prima facie showing" that the documents fell within the scope of discovery because they contained one of the court-approved search terms, but acknowledged that "Plaintiff has not made a strong showing, other than this, that the withheld documents are relevant." While the court accepted that Defense counsel made a "good faith" determination of nonresponsiveness, the court went on to reason that its "confidence in defendants' response [was] colored" by Defendants' prior failure to comply with discovery obligations (which the court did not explicitly discuss beyond reference to a prior order). Ultimately, the court found that it would be disproportional to require Defendants to re-review the documents and also disagreed with Plaintiff's assumption that Defendants had something to hide. Nonetheless, the court found that "the appropriate resolution" was to require Defendants to produce all of the at-issue documents under the conditions of the prior production, with Plaintiff to bear the costs for the review. The court further instructed that if Plaintiff identified documents that were wrongfully withheld, it could bring a motion for sanctions to recover attorneys' fees.

A full copy of the court's order is available here.

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