Co-authored by: Gil Keteltas

In reviewing an opponent’s production of electronically stored information (ESI), you may start out with the common sense question, “What information is missing that I expected to see based on the claims and defenses in dispute?”   This question, a somewhat informal “gap analysis,” is central to two recent employment litigation decisions out of the U.S. District Court for the District of Kansas.

In Chura v. Delmar Gardens of Lenexa, Inc., Magistrate Judge David Waxse found that production gaps raised “justifiable concerns” over the scope of Defendant’s preservation and search of ESI, and he set an April 30th “evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI” responsive to Plaintiffs’ discovery requests.  In Robinson v. Arkansas City, Magistrate Judge Gerald Rushfelt concluded that production gaps, most notably the failure to produce information from the computers of a “primary” player, reflected “halfhearted and ineffective efforts to search for responsive documents.”  Judge Rushfelt required Defendant to redo its search and ordered the production of a “mirror image” of the key player’s hard drives.

Are you prepared for your opponent to exercise common sense – perhaps aided by technology – and analyze your ESI production for gaps?  Nothing prevents you from a preemptive exercise of common sense.  Is email missing from key players for key time periods?  Are certain types of documents absent from the production that a reasonable person would have expected to see?  A producing party can proactively examine its production to fill any gaps or prepare its explanation as to why any gaps exist.

Consider some of the issues identified by Judge Waxse in Chura:

  • “It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.”
  • “Defendant is correct that it should not be compelled [to] produce documents that do not exist and therefore cannot be produced.  But, as Plaintiffs argue, it does seem unlikely that Defendant has no responsive documents or ESI other than the Plaintiffs’ personnel files and files associated with their respective charges of discrimination.”
  • “The Court finds that Defendant’s failure to produce any ESI, such as email, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery request.”

If you are the producing party, look at what you intend to produce and ask the questions that are likely to be asked by your opponent or the court. For example, are there key players or subject areas for whom and which data is missing?  If so, are these gaps you can fill through a more comprehensive collection or search, or through better guidance to document reviewers?  Alternatively, is it a gap you can explain because there is a defensible reason why the information was not created or preserved?

A producing party who is prepared to address and document a reasonable basis for production gaps is unlikely to have to explain itself in an evidentiary hearing.  Even if an evidentiary hearing or 30(b)(6) deposition is required, the producing party will be well-prepared to testify.

In Robinson, Judge Rushfelt stated the following expectation for an adequate search (which was also quoted in Chura):

To adequately respond to a request for production, the respondent must conduct a reasonable search for responsive documents.  Parties, along with their employees and attorneys, have a duty to act competently, diligently, and ethically with respect to discharging discovery obligations.  This requires a joint effort to identify all employees likely to have been authors, recipients or custodians of documents responsive to the requests for production.  Parties jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents.  A party does not meet its discovery obligations by sticking its head in the sand and refusing to look for documents.  It is inexcusable, furthermore, to respond to a request for production without reviewing the computer of a primary actor in the sequence of events leading to litigation.

The Sedona Conference’s “Jumpstart Outline” provides an excellent starting point for the “joint effort to identify” relevant ESI.  Attorneys and their clients should, as early as possible, think about the claims and defenses at issue, the people who are likely to have information relevant to those claims and defenses, and the paper and electronic sources of that information.

Also, in many cases litigants can more effectively control the costs, risks and burdens of discovery through informed discussions with their opposing parties.  Consider discussing issues concerning the scope of preservation, the identity of key custodians, search methodologies, or data sources that are inaccessible or unlikely to have relevant ESI.

Judge Waxse used his opinion in Chura to reinforce his prior views concerning the importance of cooperation throughout the discovery process:  “As happens too frequently in these days of electronically stored information (“ESI”), counsel in this case have been unable to sufficiently cooperate to resolve their discovery disputes.” The Sedona Conference has repeatedly recognized the importance of cooperation in conducting a cost-effective and efficient discovery process.  While a court will inevitably resolve some discovery disputes, if you think about the discovery process before problems arise, and anticipate and address those areas an opponent may perceive as problems, your discovery issues may not require the attention of a court.