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New York Court: Can't Point to Sheer Number of Emails Withheld as Evidence of Improper Withholdi

This month, Judge Sylvia G. Ash issued a decision, 255 Butler Assoc. LLC v. 255 Butler LLC, Index No. 511560/2015, 2019 N.Y. Misc. LEXIS 4629 (N.Y. Sup. Ct. Aug. 14, 2019) ruling on the Plaintiff's motion to strike. The Court previously issued an order directing the Defendants to produce all documents collected by its electronic discovery consultants responsive to certain search terms and excluding privileged information. The Court's order was in response to the Defendants' unexplained failure to produce certain emails that were produced by the Plaintiff and should also have been in the Defendants' possession. The Defendants' subsequent production included some emails with redacted privileged information. The Plaintiff's motion contended that the Defendants' email production should not have any redacted financial or business information, and that its answer should be struck because they intentionally deleted or withheld responsive ESI.

The Defendants submitted affidavits by two electronic discovery experts attesting to the fact that they saw no evidence of intentionally deleted emails. The Plaintiff accused the Defendants of failing to produce emails from personal email accounts; cell phone data; and meta data for a contract. The Plaintiff could only provide one example of an incorrectly designated privileged document.

Judge Ash ruled that, "the fact that the 'missing emails' were not a part of the 'hit emails' does not establish that Defendants willfully destroyed evidence." Id. at *8. She directed the Plaintiff to make reference to specific examples on the Defendants' privilege log to establish improperly withheld documents. "It is insufficient to merely point to the sheer number of documents withheld as evidence that Defendants are improperly withholding discovery." Id. at *9.

She did order the in camera review of a chain of emails on which counsel for the Plaintiff was not copied. Productions from personal email accounts must be requested from individuals who are not employees of the Defendants. Requests for cell phone call logs; and a search of employee gmail accounts were found not to be unreasonable. The Defendants were ordered to comply with the parties' ESI agreement in 45 days.

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