“What do we want?” “More documents from the other party!” “Why do we want them?” “…”

What Should a Party Do When Filing a Renewed Motion to Compel? The Secret to Getting Your Motion Granted

Author: Kiersten A. Fowler

Case citation: Firefighters’ Ret. Sys. v. Citco Grp. Ltd., Civ. Action No. 13-373-SDD-EWD (M.D. La. Jan. 3, 2018)

Employee/Personnel/Employer Implicated: Firefighters’ Retirement System

eLesson Learned: When you’re requesting that more documents be produced, be specific in demanding what you want and why you want.

Tweet This: Going back to square one: the key to getting a judge to grant your Renewed Motion to Compel.

Any lawyer will tell you that as a basic rule of any aspect of litigation, “you can’t always get what you want.” This is especially true in discovery, and it is a frustrating situation when you feel as if the other party is holding out on you once you receive the results of their document production. However, you’ll carry a heavy burden if you assert a Renewed Motion to Compel, so make sure you are ready and have the full strength necessary to overcome carrying that burden to a panel of judges.

Firefighters’ Retirement System v. Citco Group Limited is a cautionary tale of how seriously courts take the Federal Rule of Procedure 26(b) when a party files a Renewed Motion to Compel. Document production can be a tedious task, so being asked to perform the same production twice is a dreadful fate. Luckily courts agree with that and thus will refuse to bestow that horrid fate on anyone… unless the other party has a good reason for it. So, if you’re that other party, learn what is and what isn’t a good reason enough to be granted a Renewed Motion to Compel.

The contentions made by Firefighters’ Retirement System (FTS) is a good example of an arbitrary reason: statements given by a single employee during one deposition. FTS was concerned with how Citco gathered the information to respond to interrogatories and requests for productions, and rightfully so requested and was granted a deposition pursuant to Fed. R. Civ. P. 30(b). One Citco employee’s deposition, Mr. Diver’s, wound up serving as the sole basis for FTS’s Renewed Motion to Compel, as FTS believed Diver’s responses showed a clear flaw in both the list of custodians and electronic search for documents. The court was not nearly as convinced.

In denying the Renewed Motion to Compel, the court strictly adhered to the language of Fed. R. Civ. P. 26(b). Specifically, the Court focused on two key elements: (1) FTS’s reason for the motion, and (2) weighing that reason against the fate of performing document production TWICE.

Regarding the first element, the Court noted that FTS’s reasons were far too broad. In its analysis, the Court referenced the importance of “meet and confers” where parties should be explicit in addressing any foreseeable issues about disclosure, discovery, and the preservation of ESI pursuant to Fed. R. Civ. P. 26(f)(3)(C). This conference was held, the parties came to an agreement, and yet FTS was still unsatisfied with the documents that came as a result of Citco’s document production. Without a specific reason as to what FTS would have done differently in this meeting, (e.g., asserting that there should have been specific custodians or search terms added in the second production to make up for the allegedly “flawed” first production), FTS’s request simply wasn’t going to be granted.

In regard to the second element, the court moved their scrutiny to what FTS was actually requesting. Without reason, FTS demanded more be done. These requests included a mass email questionnaire to all Citco employees questioning their personal knowledge of the issues of the lawsuit, accurate responses from all employees, and individual searches of the personal computers of certain employees. Considering what was at stake, the court found this completely unreasonable, and rightfully so.

Thus, if you ever find yourself propounding a Renewed Motion to Compel, give more reasons than FTS and fewer demands. The test under Fed. R. Civ. Pro. 26(b) is a balancing test, so the reasons should always outweigh the demand and burden on the other side.

Lastly, it is equally as important to address what Citco did correctly: they gathered their documents from the three general sources that should be collected from. Take note: (1) hard copy files of each Citco Defendant entity, (2) the shared hard drive files of each Citco Defendant entity, and (3) email files of the 21 agreed-upon custodians using 56 agreed-upon search terms.

Courts don’t want to force lawyers to “go back to square one” in document production efforts because we live in an era where vast amounts of electronic information are available for review. It is because we live in this era that courts have not and will not expect a party to meet a standard of perfection in document production. The lesson is simple: when you’re producing documents, do your due diligence, and when you’re requesting that more documents be produced, be specific in demanding what you want and why you want.

Kiersten Fowler earned a B.S. in Biochemistry and a B.A. in Classical Studies from Seton Hall University in the highly regarded Honors Program. She is currently pursuing her J.D. at Seton Hall University School of Law (Class of 2019). After law school, Kiersten will be working for Haug Partners, LLP, a mid-sized Intellectual Property firm in Manhattan. She is hoping to specialize in both patent litigation and patent procurement, but is open to exploring other areas of IP Law during her career.

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