Beware of the ESI-discovery-tail wagging the poor old merits-of-the-dispute dog

Here is a new opinion you probably have not heard of yet by Senior U.S. District Judge Sandra s. Beckwith. Moody v. Turner Corp., Case No. 1:07-cv-692 (S.D. OH, Sept. 21, 2010). Judge Beckwith is an early signatory of The Sedona Conference® Cooperation Proclamation. She also uses one of my favorite sayings about the e-discovery-tail wagging the merits-of-the-dispute dog in this opinion. But you will have to read to the end for her full context quote. Thanks to Matthew R. Byrne, my Jackson Lewis e-discovery liaison in Cincinnati, for bringing this case to my attention.

This opinion arises out of ERISA, an old legal speciality of mine before I went full-time e-discovery-only in 2006. It is a dispute over the plan administrator’s calculation of pre-retirement lump sum pension benefits. (Yawn.) The plaintiffs’ attorneys apparently tried to stay awake by engaging in old-fashioned, non-cooperative, hardball discovery, which Judge Beckwith summarized as a “lengthy and contentious discovery process.” Seemed like they picked the wrong judge for that sort of litigation tactic, but maybe they have never even heard of Sedona or the Cooperation Proclamation.

Plaintiffs’ Production Request

The plaintiff made many, many discovery requests in what should be a factually simple, albeit legally complex dispute. In two of their requests for production they included categories concerning ESI and even specified keywords. Here is how Judge Beckwith describes them:

Plaintiffs’ request for production No. 1 and No. 2 sought production of emails concerning the plan that contained words or phrases identified in nine separate sub-requests; the Court’s rough count of the requested search terms is at least 160 different terms.

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Source: e-discoveryteam.com
By: Ralph Losey