Today, Judge Becky Thorson issued an order in Murphy v. Motions, Civ. No. 16-2623 (DWF/BRT) Civ. No. 16-2623 (DWF/BRT), 2018 U.S. Dist. LEXIS 93043 (D. Minn. June 4, 2018), ruling on both the Plaintiffs' motion to compel discovery, and the parties respective ESI proposals.
The Court denied the Plaintiffs' motion to compel a response to its interrogatory seeking the identity of individuals referenced in reports that are not specifically named. The reports are Bates stamped, DHSGOR0032379 to DHSGOR0032636, consisting of only 258 pages. The Court denied the motion citing, "Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534, 537 (D. Del.1962) ('[A] party is not required to make research or compilation of data except that within its own knowledge.')" Id. at 9. The defendants did not have the identities of the referenced people in its possession.
Judge Thorson did grant a motion to compel a search of the Defendant's databases for information on certain individuals. The defendant in the case is Commissioner of the Minnesota Department of Human Services. Its position that a database search would be burdensome and not proportional to the needs of the cases was rejected even thought it contended that each search could take between 10 to 120 minutes because of the need to review files manually. The Court noted that it had already ordered a database search for other individuals: "Since Defendant will be searching the SSIS database anyway, it is not unduly burdensome to add a search relating to these 42 individuals. Indeed, there may be overlap between the individuals identified in Interrogatory No. 6(c) and Document Request No.43(e)." Id. at *16-17. The order instructs that the database search method be included in the ESI protocol.
The Plaintiffs tried to add search terms and sources to a new ESI Protocol for its requests despite the fact that a previous order had specified search terms and sources (which include SharePoint, a CRM database, and network drives). The Plaintiffs failed to indicate why the previously agreed upon search terms did not find the documents sought by the new request, or propose new search terms. Judge Thorson held that, "A do-over search of electronic discovery sources is overly burdensome. However, the results of the previous searches should be further examined to determine if the pool of documents includes discoverable documents now responsive to Plaintiffs' January 30, 2018 requests." Id. at *28. She ordered the parties meet and confer to find new search terms, and if they could not come to an agreement to file a joint submission. (The parties have not been given a lot of time - a new protocol is due by Friday, June 8).
Neither party raised the possibility of sampling database sources, so Judge Thorson suggested in her order that sampling be performed for new data sources.
Judge Thorson did not fault the Plaintiffs for using their own search terms to search for responsive documents, in addition to other methods, instead of negotiating terms with the Defendant.