When will unequal discovery obligations regarding the production of former employee emails be upheld?

Can a Party Refuse to Produce Archival Documents When an Opposing Party Cannot Produce its Own Archival Documents Due to its Lack of an Archive? No!

It may make sense in the eyes of some parties that discovery obligations should be equal. These parties believe that they should not have to do any extra work above and beyond what their adversary is doing to prepare the documents and information that will be turned over in discovery.

Relying on this belief, though, in refusing to comply with a discovery obligation, will most likely not be a successful strategy in the courtroom.

This very belief is what Blue Coat Systems relied on in the above case. Finjan brought suit against Blue Coat for patent infringement. Finjan requested a number of different documents relating to the case. Specifically, Finjan was looking for emails produced by eight different custodians at Blue Coat. Blue Coat was also requesting emails from eight different custodians at Finjan, as well.

On its face, Blue Coat had no issue with Finjan’s request and was willing to comply. However, Blue Coat did choose to pick a fight with Finjan over its having to search through custodial emails from its archival systems. Blue Coat argued it should not have to do this, and it should only have to produce emails from its active systems, because Finjan was not being required to do the same thing.

The reason Finjan was not being ordered to produce emails from its own archival systems, though, while Blue Coat was, was because Finjan did not even have an archival system to begin with! Blue Coat argued that if Finjan did not have to go through its archives, then they should not have to do so, either.

As much as Blue Coat wanted to complain about Finjan not having to search the archives like they had to do, though, the court did not wholeheartedly buy this as a legitimate reason for not complying with Finjan’s request. The court said that at no point had Blue Coat disputed the relevance of the information Finjan was seeking. Blue Coat was simply “balking” at the idea that its custodians should have to turn over email other than that from its active systems all because Finjan cannot physically produce its own former employees’ emails.

The court did not completely dismiss Blue Coat’s argument, though. The court admits that Blue Coat may have had a legitimate beef about having to dig through its archives while Finjan was incapable of doing the same. Nevertheless, “one party’s discovery shortcomings are rarely enough to justify another’s.” Certainly where, as here, the requested documents are relevant to the case (they do mention Finjan, after all), the request is reasonable, and Blue Coat will not be able to use Finjan’s inabilities as a justification for its refusal to produce.

The court ultimately compelled Blue Coat to produce all archival emails that mention Finjan from the eight designated custodians. So what is the lesson to be learned from all of this? Well, for starters, if a party does not want to have to take the time and effort to search through its archives, then do not have archives at all!

But more importantly, do not use the opposing party’s inabilities and failures to justify your own. Do what has been reasonably requested, or else the judge will just compel you to do it any way and explain her reasoning in a very public, published opinion for all to read.

Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office.

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