The explosive growth in the volume of electronically stored information shows no sign of slowing, allowing greater opportunity for discovery disputes where parties fail to work collaboratively toward solutions. A recent case from the District of North Dakota reminds lawyers of the importance of cooperation between parties in resolving discovery disputes, as well as the need to utilize available technology to manage the cost and scope of the discovery process.

In FA ND Chev, LLC v. Kupper, No. 1:20-cv-138, 2023 BL 43515 (D.N.D. Jan. 04, 2023), arising from alleged violations of non-compete and non-solicitation clauses following the sale of car dealerships by Plaintiffs to the Defendants, the court issued a discovery order requiring Plaintiffs to use search terms proposed by Defendants to search for and produce relevant emails. When Plaintiffs were unable to exclude large volumes of non-substantive documents from their search results, they proposed several alternative solutions to Defendants to avoid the significant cost of manual review of the materials, including cost sharing with Defendants for the additional review, narrowing of Defendants’ search terms, and designating the documents “Highly Confidential – Attorneys’ Eyes Only.” Defendants declined to negotiate a resolution to the issue and filed a motion for sanctions relying on the original court order. In response, Plaintiffs sought a protective order asking the court to approve one of its proposed solutions to the dispute.

Denying the Defendants’ motion for sanctions, the court noted that the Plaintiffs had made efforts to comply with the court’s order, citing FRCP 37(b)(2)(A), which permits sanctions only where a party “fails to obey an order to provide or permit discovery.” Instead, the court, “understand[ing] Plaintiffs' reluctance to spend additional funds and resources to complete the discovery process” after Defendants had objected earlier to Plaintiffs’ use of technology assisted review to narrow the search results, granted Plaintiffs’ motion in part. While it found Plaintiffs’ proposed confidentiality designation to be unnecessarily restrictive, the court allowed the documents to be designated as “Confidential,” limiting their use to the litigation but allowing Defendants’ counsel to share the information with their client.

In addition to noting the Defendants’ rejection of less burdensome solutions to Plaintiffs’ discovery issues, the court also looked unfavorably on the Defendants’ unwillingness to work with Plaintiffs toward resolving these issues before filing its motion, citing a local rule analogous to FRCP 37(a)(1) requiring the parties to confer “for the purpose of making a reasonable, good faith effort to resolve the dispute without involving the court." When the Plaintiffs requested a status conference to discuss the discovery issues, the court wrote, the Defendants’ counsel “did not raise a potential motion for sanctions at that conference or thereafter” before filing its motion for sanctions. Lawyers involved in discovery disputes should be aware of their obligations under Rule 37(a)(1) to certify that they have “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” By doing so, parties can circumvent costly motions practice and avoid unnecessary delays in obtaining discovery.

Additional information on the case, including brief analysis by Reed Smith Partner David Cohen, can be found in the Exterro Case Law Alert.