Raising the Specter of Discovery Abuse: The Importance of Developing a Discovery Record Before Filing a Motion to Compel

Two recent decisions highlight the importance of establishing a record of discovery abuse before filing a motion to compel based upon the commonly held suspicion that a responding party is withholding information and/or has failed to adequately preserve or search for information. Even in situations where a party is convinced that an adversary has failed to produce discoverable information, a litigant will face an uphill climb in pursuing a motion to compel in the absence of concrete evidence as to an adversary’s discovery shortfalls, including evidence of data deletion, untimely or absent preservation efforts, and/or the failure to produce information produced by other parties or third-parties that clearly should be in the possession of the responding party.

Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Cooperative (E.D. Pa.)

In a recent decision from the Eastern District of Pennsylvania, Judge Schiller denied plaintiffs’ motion to compel in a case where plaintiffs insisted that “there simply must be responsive documents,” but plaintiffs were unable to provide any specific evidence to support their speculation. In this antitrust litigation involving allegations that defendants colluded to raise the price of fresh agarics mushrooms, plaintiffs sought all documents from defendants regarding the sale of mushrooms to plaintiffs. In particular, numerous discovery disputes ensued after the court entered an order requiring defendants to produce “all documents relating specifically to the Winn-Dixie Plaintiffs including price lists, negotiations, communications and contracts relating to the sale or potential sale of mushrooms to the Winn-Dixie Plaintiffs.” Following court-ordered discovery regarding defendants’ search methodologies, plaintiffs filed the motion to compel that is the subject of this decision.

In the motion to compel, plaintiffs argued that: (1) defendants failed to provide information on numerous topics that address the reasonableness of their searches; (2) “it simply cannot be the case that no Defendants have documents related to the sale of mushrooms to Plaintiffs”; and (3) as a result of Defendants’ failure to produce documents related to the sale of mushrooms to plaintiffs, defendants “either withheld relevant discovery or failed to conduct a reasonable search.”

In denying the motion to compel, the court emphasized that the burden is on the movant to demonstrate that a party from whom documents were requested withheld documents or failed to conduct a reasonable search. Here, plaintiffs failed to come forward with any affirmative evidence demonstrating that responsive documents existed, but instead, plaintiffs asserted that “there simply must be responsive documents.” The court rejected this argument, and cited numerous decisions finding that a litigant’s subjective belief and/or speculation that an adversary failed to produce documents is insufficient to warrant the granting of a motion to compel.

John v. County of Lake (N.D. Cal.)

Conversely, in a recent decision from the Northern District of California, Magistrate Judge Kim ordered monetary sanctions and recommended that the District Court provide an adverse inference instruction to the jury at trial after finding that “Defendants or their counsel breached their obligations to provide discovery.”

In John v. County of Lake, plaintiffs filed a civil suit claiming they were victims of unlawful search and excessive force by the defendants, who were law enforcement officers attempting to locate a family member of the plaintiffs who was the subject of an arrest warrant. Plaintiffs initially raised concerns about defendants’ unwillingness to confirm they were preserving evidence pursuant to a litigation hold. The District Court then directed defendants to preserve “[a]nything that relates directly to the case, like emails, text messages, voicemails, memos, handwritten notes,” directed defendants to turn off any automatic deletion of emails, and warned defendants of the possibility of an adverse inference instruction.

Plaintiffs struggled to get ESI from the defendants, who initially represented that the individual defendants did not use their cell phones to communicate about the underlying search incidents and that there were no responsive phone records. After fact discovery closed, defendants informed plaintiffs that they had a chain of text messages between and among individual defendants related to plaintiffs’ requests and that defendants had withheld those messages on the grounds of relevance. The defendants ultimately produced the text message chain, though testimony revealed that no litigation hold was put in place. Plaintiffs then filed a motion for spoliation sanctions.

Applying Rule 37(e), the court held that: (1) defendants had the obligation to preserve evidence beginning when plaintiffs filed an administrative claim prior to filing the instant civil suit; (2) the ESI was lost because defendants failed to take steps to preserve it and individual defendants testified that they deleted emails and text messages after the litigation began; (3) the ESI could not be restored through other means; (4) plaintiffs were prejudiced because there is a strong likelihood that there were relevant emails and text messages that were deleted; and (5) defendants acted with an intent to deprive plaintiffs of the destroyed evidence because defendants did not put in place policies to prevent such deletion after the District Court directed them to do so.

Accordingly, Judge Kim granted the plaintiffs’ motion for sanctions, recommended that the District Court provide the adverse inference instruction to the jury and granted the motion for attorneys’ fees and costs in an amount to be determined after final submissions, estimated to be at least $105,949.98. However, the court declined to sanction defendants’ counsel and only defendants, on the grounds that it was not clear who bore the fault for the spoliation of evidence.

How to Reconcile These Conflicting Decisions?

The different results in these two decisions highlight a Catch-22 many litigants are confronted with, as it can be incredibly difficult to demonstrate that a responding party has not produced documents in its possession, and a litigant cannot shift the burden back to the responding party based on speculation alone. Litigants would be best-served in these situations by identifying a record of discovery abuses including: (1) data deletion; (2) failure to implement preservation efforts; and/or (3) inconsistencies with the responding party’s productions. Litigants should also endeavor to establish the existence of communications (not produced by the responding party) through depositions, as plaintiffs did in John v. County of Lake, in which individuals acknowledged certain documents and/or communications that would have been created related to the dispute. These are examples of the very type of “evidence” that can help a litigant to raise the specter of discovery abuses and avoid the denial of a motion to compel based on “mere speculation.”

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