In this case of breach of license agreement, after several discovery disputes among the parties, on December 9, 2014, a federal court fashioned a what it called a “new and simpler approach” to e-discovery, including the identification of 13 search terms/phrases to be utilized when searching Plaintiff’s corporate documents. Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014).
The defendant, Optimum Energy LLC (“Optimum”), had served plaintiff Armstrong Pump, Inc. (“Armstrong”) with two sets of discovery requests. The Court had granted defendant’s motion to compel twice and specifically warned Plaintiff to avoid piecemeal production of documents. However, after 4–1/2 years, the Court noted its frustration with the continual and growing animosity between the parties, which had generated hundreds of pages of motion papers on discovery and failed to fulfill them. The court said it was “enough”:
A lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery. Our adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly.
As a result, the Court fashioned its “new and simpler approach to discovery”. It identified thirteen phrases referring to or hinting at the at-issue technology. In order to “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship”, the court decided that Plaintiff shall “search ALL corporate documents, files, communications, and recordings for EACH of the above phrases”; maintain a list of every server searched, and a list of all positive search results. For each positive result, Plaintiff shall procure a full copy of the document in question.
When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).”
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014) is available (with subscription) at https://advance.lexis…
Our query: can an approach that ignores TAR and which requires a court to delve into the details of a case to the extent necessary to identify thirteen key phrases be considered either “new” or “simpler”?
For more information: Nathan M. Crystal
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