In this case involving breach of contract and tortious interference, the court partially granted and partially denied the plaintiff’s motion to compel the defendant to supply discovery materials. The decision weighed on whether requests for production were within the allowable scope of discovery and proportional to the case.
The plaintiff, First American Bankcard, Inc. (“First American”), alleged that the defendant, Smart Business Technology, Inc. (“SBT”) provided “deficient and defective” software design services for products the plaintiff used to process “cash advance and check cashing at casinos.” In this motion, First American moved to compel discovery, which the court “granted in substantial part.”
Under Federal Rule of Civil Procedure 26(b)(1), both the “parties and the court have a collective responsibility to consider the proportionality of all discovery.” Here, though, SBT “offered nothing more than a boilerplate proportionality objection, without providing any information concerning burden or expense.” Those objections did not support its arguments of “disproportionality and undue burden and expense outweighing the likely benefit of this highly relevant discovery.”
Therefore, the court granted the majority of First American’s requests for production, finding SBT’s objections “absurd.” The materials First American sought were “clearly relevant and within the scope of discovery.” Ordering their production had no impact on the eventual disposition of the case. Indeed, “almost all claims or defenses to which discovery is sought are disputed.”
SBT also argued that it did not “have possession of the requested data” because its business had collapsed and all the business assets were “in the hands of [its] former owners.” SBT did not raise this objection until its opposition memorandum.
Therefore, the court rejected its assertion on two grounds. First, SBT’s failure to assert the objection in its Rule 34(b) responses waived the objection. Second, “a party’s obligation to produce materials … extends beyond mere possession.” That duty encompasses materials “within its possession, custody or control.” Here, SBT’s former owners “are precisely the kinds of individuals who owe an obligation to their ex-corporate employer to provide the requested materials.”
However, the court did not grant all of First American’s requests: it denied the request for “broad-ranging forensic imaging of defendant’s ‘computer/server’ systems.” First American failed to establish either “the relevance [or] the proportionality of [ ] forensic imagining,” which was not “readily apparent to the court.” While forensic imaging is “within the scope” of permissible discovery, it is still “subject to the proportionality limits.” Given that “courts should guard against undue intrusiveness,” the court denied the request while allowing First American to refile if the parties later determined imaging was “proportionally appropriate.”
The court granted the motion “in substantial part” and granted corresponding attorneys’ fees and costs.
Takeaways on effective ediscovery responses
State both your requests for discovery and your objections to requests in clear, specific terms. Spell out your objections, permanently discarding your boilerplate responses. This case reiterates — as Judge Peck declared earlier this year in Fischer v. Forrest, No. 14 Civ. 1304, 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017) — that boilerplate objections are insufficient and unwelcome.