“Defendant’s motion will be DENIED, for the reasons set forth at the hearing and for Defendant’s failure to adequately support the requests.”  Cifuentes v. SID Tool Col, Inc., 2026 WL 2795597 (M.D. Fla Sep. 18, 2026)(emphasis added).

The written opinion gave no reasons: “This Order memorializes the rulings made at the hearing.” Id.

The court added: “As discussed with Plaintiff at the hearing, the Court notes that while the use of AI is not prohibited, Plaintiff proceeds at his own peril by using it, such that he undertakes the risks and potential consequences associated with its use. See Fed. R. Civ. P. 11. Plaintiff’s pro se status does not absolve him of the requirement that he fully comply with all applicable Federal Rules of Civil Procedure and Local Rules.”

The hearing transcript was not available on Westlaw or Bloomberg Law.  Bloomberg reports that: “This case arises out of Defendant’s allegedly ‘discriminatory and retaliatory discipline and termination’ of Plaintiff…. Plaintiff claims that Defendant discriminated against him because of his ‘Hispanic and Middle Eastern ancestry’ and his ‘lifelong neurodevelopmental and anxiety-related disabilities, including [attention-deficit / hyperactivity disorder (ADHD)] and [a]utism / Asperger’s spectrum traits.’”  Cifuentes v. Sid Tool Co., No. 6:25-cv-1651-JSS-LHP, 2026 BL 262439 (M.D. Fla. July 13, 2026).

For more on discovery related to use of AI, please visit:

• I. Privilege, Heppner, and How Did the Court Learn About the Absence of Certain Attorney-Client Communications Between Mr. Heppner and His Attorneys?
• I. Documents Deemed Not Privileged
• “Two Courts, Two Answers: When Does Using AI Waive Privilege?”
• Discovery Permitted About Development and Use of AI Program
• Does OpenAI Provide Legal Assistance?
• Important A.I. Work Product and Protective Order Decision
• Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney
• Tara Emory and Maura Grossman Address Protection of Attorney Prompts in “GenAI TAR”
• Upload of Documents to Anthropic Products Leads to Denial of Motion to Seal Record

What follows is a somewhat lengthy Opinion, which the Court deemed prudent to write in order to reaffirm the duties incumbent on parties and their attorneys during the discovery process, especially in the context of electronic discovery.

In Yas Caribe, eight requests for production and four interrogatories were in dispute.  The issue that this blog post focuses on is unsupervised self-collection by Defendants.  “[T]he EEOC highlights that several of its document requests entailed the collection of ESI, but maintains that defendants’ collection efforts were unsupervised by counsel and demonstrably incomplete.”

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

EEOC challenged the sufficiency of Defendants’ search for documents.  Abdullah Yassin admitted that he failed to preserve ESI and failed to review his own the electronic devices, including email and texts, or those of Khalid Yassin, the alleged harasser.  Further, he had not directed any of his employees to do so.  And, the EEOC claimed “that deposition testimony revealed that relevant personnel files and employment-related documents may be stored in the offices of a non-party entity owned and operated by Abdullah Yassin, called Yassin Unlimited Drug Corp. d/b/a Droguería San Juan,” and none of this stored information had been disclosed. Id. at *5.

The EEOC sought two types of relief. First, it asked that “Defendants be required to amend all of their Responses to EEOC’s [document requests] to clearly state: (1) whether responsive documents exist; (2) what steps were taken to locate responsive documents; (3) whether any documents are being withheld.”  Second, it asked for forensic inspection of the cell phones of Abdullah Yassin and Khalid Yassin, and a re-opening of discovery.

Defendants responded that Abdullah Yassin testified that he had not deleted anything and had no responsive documents.  They asserted that the messages EEOC relied on to show insufficient production had eventually been produced.  Further “defendants produced a ‘Messages Search Certification’ subscribed by Abdullah Yassin to the effect that he personally supervised Khalid Yassin’s search of his cellphone for responsive messages exchanged with Ms. Wilkerson, and further produced three responsive pages.”  Finally, in what I suggest is an incorrect position:

[D]efendants’ attorney argued in response to the motion to compel that directly supervising any search for responsive documents in his client’s files would make him a “potential witness” and would be “ethically inappropriate.”

The EEOC challenged the sufficiency of the “Messages Search Certification” and it had obtained the messages independently from Ms. Wilkerson, not from Defendants. Id. at *10-11.

Discovery on Discovery

There was a threshold issue.  The court described the EEOC’s position as a request for “discovery on discovery.”  This is sometimes called “satellite discovery” or “culpability discovery.”  The court enunciated several principles governing that process.

“Discovery on discovery has been described broadly as ‘any discovery seeking information regarding a party’s preservation, collection, and retention efforts.’ …  Although some trial courts have considered these types of discovery requests to be outside the scope of Rule 26(b)(1), others have not.” Id. at *6 (citations omitted).  The court continued:

In any case, the general structure of the discovery process drawn into the Federal Rules of Civil Procedure strongly implies that such discovery should be the exception, not the rule. “The federal discovery system in some ways resembles an ‘honor system,’ ” where the party seeking discovery “must generally ‘rely on the representations of the producing party or its representative that it is producing all responsive, relevant, and non-privileged discovery….’  Casting doubt on a responding party’s efforts to provide full and complete discovery responses is by no means taboo, but anyone attempting to obtain a remedy on that ground must overcome the default assumption of good-faith compliance. This is even more so when the attempted second-order discovery targets a person’s electronic systems or devices….”

Id. (emphasis added; citations omitted).  Here, however, the threshold was crossed.  For more information about “discovery on discovery,” please see the citations at the end of this post.

Defendants’ Efforts Were Insufficient

The court wrote: “Defendants’ initially deficient response to the document request and Abdullah Yassin’s deposition testimony as to the inadequacy of his search raise substantial doubts as to defendants’ compliance with their discovery obligations.”

While a single missing text message does not normally justify discovery on discovery, id. at *11, here there was also testimony that Abdullah Yassin had failed to preserve and collect documents related to the alleged harassment, had failed to search his own email and text messages, had failed to search the electronic devices of relevant custodians, including the alleged harasser, and had not instructed anyone else to do so.  Id. at *11.  Further, while the EEOC had suggested search terms that the court viewed as reasonable, “Defendants did not describe what, if any, search terms they used to find responsive documents….” Id.

Self-Collection Should Be Supervised by Counsel

With limited exception, the requirement that an attorney supervise a client’s collection is well established:

• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011);
• Losey, “Another ‘Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

There is contrary authority, which may be limited to a situation where there is no indication that relevant information has gone missing. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Further, there are defensible ways to conduct self-collection.  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024). However, that method was not used in Yas Caribe.

Defendants’ Attorney’s Argument That Supervising a Search Would be Improper

Defendants’ attorney in Yas Caribe wrote:

It is my understanding that being with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has, complies with a “reasonable inquiry” requirement. Otherwise, a counsel’s active search for those records will make a counsel a potential witness if a client misses a text message or for any other reason. I believe that my discussing every question or discovery request with my witnesses, while they are answering, producing documents, or giving instructions to their secretaries or assistants to look for and produce exactly what was asked for, is involvement that complies with Rule 26(g)…. And how would I remember what I saw? How would I know if they are showing me everything, or if messages were deleted, or if they have changed telephones? … Still, I believe it is inappropriate for me to get involved in the witnesses’ telephones, computers, etc., beyond what I already have.

As noted above, he argued that supervising his client’s collection would make him a “potential witness” and that it would be “ethically inappropriate.”  Id. at *6.  In my opinion—and more importantly, the court’s opinion—he was incorrect.

Supervising a Client’s Search Does Not Make an Attorney a Witness

In response to the argument that supervision would make the attorney a witness, the court wrote: “The Court first notes that neither supervising nor assisting a clients’ document search converts an attorney into a witness in a case. In fact, such supervision may be required in appropriate circumstances….  Indeed, the existence, relevance, and discoverability of ESI is one such circumstance that counsels in favor of attorneys exercising diligent supervision over their clients’ efforts to comply with discovery requests….”

Quoting a prior decision,[1] it added: “Attorneys have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.”

Of course, where there is a prima facie showing of spoliation, an attorney may be compelled to disclose how the litigation hold was implemented and how the search was conducted. The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

Failure to Supervise May Run Afoul of Fed.R.Civ.P. 26(g)

The Yas Caribe court also looked to Fed.R.Civ.P.26(g), the so-called “stop and think” rule:

As to Attorney Mihailovich’s compliance with Rule 26(g)(1)’s reasonable inquiry requirement, his position warrants discussion. As mentioned above, Rule 26(g)(1) imposes on the signer of a discovery request, response, or objection a duty to perform a “reasonable inquiry.” Fed. R. Civ. P. 26(g)(1)….  In the case of a response to a document request, this duty falls squarely on the attorney, whereas interrogatory responses must be signed by both the attorney and the person who answers them. Fed. R Civ. P. 26(g)(1), 33(b)(5). [emphasis added].

The Yas Caribe court added: “An attorney’s failure to adequately guide and supervise a client’s search for responsive ESI may run afoul of Rule 26(g).”  Quoting a prior decision, it wrote: “[A]n attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized.”

Application of Principles to Facts Presented

The court had little trouble rejecting the attorney’s argument on the facts presented:

In this case, such supervision was objectively warranted. Abdullah Yassin testified that he did not perform an adequate search for responsive documents, even when his attorney represented that he was “with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has ….”

While, in making an inquiry, the court wrote that an attorney may rely on assertions of the client, that is permissible only “‘as long as that reliance is appropriate under the circumstances.’ 1983 Advisory Committee Notes to Rule 26(g).”  The court added:

A discovery request for ESI in a party’s cellphones and computer systems is a circumstance that triggers an attorney’s need to, at a minimum, understand how a client stores and uses ESI and how and where the client is searching for responsive documents.

As officers of the court, attorneys have a duty to make legally sound arguments and good-faith factual representations to the court. If an attorney does not have sufficient information to know whether his client is being accurate or not in a discovery response, particularly one involving ESI, this duty requires that he or she inquire deeper. “[T]he ethical rules now require attorneys to be competent with technologies such as ESI.” City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, 492 n.2 (N.D. Ill. 2018) (citing Model Rules of Pro. Conduct r. 1.1, comment 8 (A.B.A.)).[2] Attorney Mihailovich should have assumed a more active role in guiding defendants’ search beyond what he described in the opposition to the motion to compel. At the very least, he should have inquired into how and where the searches were being made so that he could give a reasonably informed certification of the thoroughness of what sources were and were not searched. Ideally, he would have discussed and run the keyword searches proposed by the EEOC or a mutually agreed upon version of them. Judging from the subsequent interactions of the parties that are on record, defendants’ position has been to engage in piecemeal corrections to their deficient responses and only when specific deficiencies are revealed by the EEOC’s efforts. This is not the way. [emphasis added].

The court provided “an admittedly extreme example: when attorneys receive documents that have been redacted by their clients and do not know what has been redacted, they cannot responsibly certify that the factual basis for a disclosure is compliant with Rule 26(g)(1).”

The court added that perfection is not the standard of review.  Instead, review is under an objective standard similar to Rule 11.

CONCLUSION

Applying principles of proportionality, the court considered privacy interests related to a forensic copy of the cell phones, and concluded that the burden would outweigh the benefits:

While there is certainly a well-founded suspicion that an adequate search was not carried out, and that defendants thus failed to comply with their discovery obligations, that does not necessarily mean that defendants are withholding responsive documents. After all, defendants represented that they had no messages between Abdullah and Khalid Yassin about Ms. Wilkerson or the alleged sexual harassment incident…, and the messages subsequently produced by defendants matched those in possession of the EEOC. In other words, there is no indication that, as of today, defendants have willfully withheld responsive documents or incurred in spoliation—only that they have not adequately searched for documents that may exist relating to the alleged sexual harassment incident at the center of the EEOC’s complaint.

As such, the request for a forensic inspection was taken “off the table for now” and the EEOC’s alternative request to compel Defendants to run supervised searches was granted.  For example, “defendants are ORDERED to perform an attorney-supervised search of both Abdullah Yassin and Khalid Yassin’s cellphones for responsive communications (email, text messages, call logs, etc.) across all relevant e-mail and messaging platforms/applications for [specified] periods….” As to one search, the response must include “the persons assisting in said searches….”

While the Yas Caribe court addressed several other issues, it stands for the principle that unsupervised self-collection is insufficient, at least where there is a factual predicate showing that the searches were insufficient.

For more information on “discovery on discovery,” please visit:

• The Case of the Missing Lab Notebooks (Aug. 28, 2026);
• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” – E-Discovery LLC (Feb. 19, 2026);
• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (De. 18, 2024);
• The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

____

[1] For a discussion of the prior decision, please see Unsupervised Self-Collection Predictably Led to Problems (Jan. 2021).

[2] For an update on the ethical duty of “technological competence,” please see 40th State Adopts a Duty of Technological Competence – Is It a Good Idea? (Mar. 31, 2022); Proposed Changes to the MD Attorneys’ Rules of Professional Conduct Re: AI (Jul. 21, 2026).

“Pending before the Court is a discovery dispute concerning Gore’s production of Board of Directors information.”  State v. W.L. Gore & Associates, Inc,. 2026 WL 2730156 (D. Md. Sep. 16, 2026)(Aslan, J.).

Pursuant to an initial Court order directing Gore to search Board of Directors minutes “that are available in electronic form,” “Gore searched Board of Directors minutes from 2020 onwards and produced 15 sets of minutes and 41 additional Board documents.”

That production led to another dispute, with the Court writing that “the State and Gore again raised the issue of the sufficiency of Gore’s production, each contending that the limited production demonstrated why additional discovery specific to the Board of Directors is or is not required.”  Plaintiffs sought discovery from 1985.

The parties disputed the governing standard: “As a threshold matter, the State and Gore dispute the standard and burden governing analysis of the sufficiency of Gore’s production.”

“The State argues that as the party resisting discovery, Gore bears the burden of demonstrating that the requested discovery falls outside the scope of Rule 26, and that Gore has not articulated any burden associated with locating these records, assessing their volume, or reviewing their contents.” Id. at *2 (cleaned up).

“On the other hand, Gore contends that the State has the burden of showing how even more discovery into sensitive Board documents would not be duplicative or cumulative of the discovery already produced in this case….”  Id.

The Court rejected Gore’s position:  “Gore relies on an out-of-circuit decision for the proposition that parties seeking searches of additional custodians beyond those initially disclosed must demonstrate that the additional requested custodians would provide unique relevant information by providing evidence that there are unique responsive documents being missed in the current search scheme that would justify the inclusion of additional custodians.” Id. (cleaned up; emphasis in original).

The Court held that the out-of-circuit authority was distinguishable. It related to motions to compel production of ESI from additional custodians.  The Gore Court wrote: “In contrast, the question here is whether Gore must search Board of Directors materials specifically, as opposed to relying on other searches of negotiated terms and custodians.”  Id. at *2.

As to relevance, the Court noted that the PFAS-related documents requested were “certainly relevant….”  It explained that relevance “is not, on its own, a high bar.” Id.

As to proportionality, “the issues at stake in this action and the amount in controversy are significant.”  The Court wrote: “The question of the burden or expense of conducting an independent search of Board of Directors information is unclear. Gore does not address this issue in its filings, but represented at a prior discovery hearing that it was not relying on undue burden to resist production of Board of Directors information.”

The Court also wrote:

Throughout the history of this dispute, Gore has argued that the sensitivity of the Board minutes, the decades-long timeframe, and the asserted cumulative nature of the discovery render a separate Board of Directors information search inappropriate…. These arguments are unpersuasive. First, the existing confidentiality order … will protect the sensitivity of the Board of Directors materials. Second, the timeframe in question is less than the “50 years” … originally contemplated because, by way of compromise, the State has asked Gore to search hard-copy Board of Director minutes back to 1985 to “target the most highly relevant information” … When evaluating the proportionality of this 35-year timeframe, the undersigned notes that the State alleges that Gore released “PFAS into Maryland for more than 50 years.” … Discovery in this action will therefore necessarily encompass a broad timeframe. [emphasis added].

The Court rejected Gore’s argument concerning cumulative, duplicative discovery:

To the extent that Gore relies on Federal Rule of Civil Procedure 26(b), the undersigned concludes that the Board of Directors information is not “cumulative or duplicative” and that the State has not “had ample opportunity to obtain the information by discovery.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii). By Gore’s own admission, the targeted pilot search [from 2020] of electronic Board of Directors minutes resulted in the production of 15 sets of minutes and 41 additional responsive documents…. Following review of the parties’ filings, the undersigned cannot conclude that such information is needlessly cumulative of other discovery.

Id. at *3. The Court ordered that “Gore will search its Board of Directors minutes and other related information for the time period of 1985 through 2019 and produce any documents responsive to the State’s Request for Production No. 23” and that the parties meet and  confer regarding the time for production and any related issues.

Th[e] hold-up in discovery production centers around the parties disagreement regarding the language in a provision in the proposed Protective Order (“PO”) concerning defense counsel’s use of Artificial Intelligence (AI) platforms in its review of discovery provided by the Government. The parties have been engaging in good faith negotiations for over a month regarding the appropriate language to be included in the PO and whether the AI obligations set forth in that provision limits defense counsel, the coordinating discovery attorney (“CDA”), and the Government. Proposals have been sent back and forth, the latest of which was provided to the Government on August 19, 2026, and was based on discussions between the Government, defense counsel and Emma Greenwood, Esq., who is appointed as the CDA in this case.

The Government is holding hostage the discovery until defense counsel executes the PO. We seem to be at an impasse. However, even though all parties are acting in good faith, the Government’s refusal to even release the discovery that is otherwise not covered by the PO is unacceptable. I am well aware of my ethical obligations on the use of AI in handling my client’s documents whether those documents are discovery or something other. The Government does not have a role in policing or overseeing or even dictating with my ethical obligations. Similarly, I trust the Government is familiar with their ethical obligation with respect to the use of AI as it relates to my client’s discovery.

Accordingly, while I remain optimistic that counsel and the Government will reach an agreement on the language of an AI provision in the PO, until such time as we do, I respectfully request the Court compel the Government to at least provide the defense with all non-sensitive Rule 16 discovery immediately. [emphasis added].

The court denied the request, writing:

The Government’s proposed protective order characterizes all discovery materials as “disclosure materials” and subjects all discovery material (whether it is designated for further restrictions as “attorneys eyes only” or “attorney’s possession only” or not) to restrictions on, inter alia, further disclosure and use other than for purposes of the defense of the charges, as well as the AI-specific restrictions of which defense counsel complains. (Docket entry no. 29-1.) In short, based on the Government’s broad definition and description of “disclosure materials,” there does not appear to be any “non-sensitive Rule 16 discovery” that the Government would be prepared to produce without restrictions on use and further dissemination.

The court also denied a request to enter the government’s protective order, writing: “The parties and the Coordinating Discovery Attorney are encouraged to continue to meet and confer to clarify the Government’s position as to whether there is any discovery material that is not within any of the categories described in the final sentence of paragraph 1 of its proposed order, and to clarify the defense’s position as to whether it believes its ethical obligations already preclude its use of AI tools that would subject the discovery material to disclosure and/or use that is incompatible with the general restrictive principles that are outlined in paragraph 5 of the proposed protective order.”

This case is in the Southern District of New York.  For a post citing orders entered by consent in criminal cases in the Southern District of New York, see Another A.I. Protective Order – Part 10 (Aug. 21, 2026).

For a recent post on this issue in a civil case, see A.I. Protective Orders Are Becoming Routine (Aug. 27 ,2026).

For more on this topic, please visit:

• Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials (Jul. 27, 2026);
• Another A.I. Protective Order (Jul. 9, 2026);
•  A.I. Protective Order—Again (Jun. 18, 2026);
• Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case (Jun. 4, 2026);
• Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care?  (May 26, 2026), discussing Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026);
• Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026), discussing In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation,2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026);
• A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026), discussing Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026);
• “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested (Apr. 5, 2026);
• Morgan v. V2X, Inc.,2026 WL 864223 (D. Col. Mar. 30, 2026), as also discussed in Important A.I. Work Product and Protective Order Decision (Mar. 31, 2026);
• Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”) (Nov. 3, 2025), based on Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025);
• Protective Order Limited Uploading Discovery Responses to Open A.I.(Mar. 26, 2026), discussing Jeffries v. Harcros Chemicals, Inc.,2026 WL 820218 (D. Kans. Mar. 25, 2026).

“Three-strata validation” was requested and rejected in In re Class Action Settlement Administration Litigation, 2026 WL 2444936 (D.D.C. Aug. 19, 2026). The parties in that case had narrowed their disputes and their “only remaining disagreement concerns how a party producing documents in discovery must validate that its productions are substantially complete.”

Plaintiffs asked for “three-strata validation.”  Defendants objected to the second and third strata.

The court explained the “three-strata” approach as:  “validation of documents coded as non-responsive, validation of documents coded as responsive, and validation of documents excluded from the universe of ESI material subject to discovery review.”

THE PARTIES AGREED TO NULL SET TESTING

The parties agreed that there is an obligation  “to confirm that responsive documents are not erroneously coded as non-responsive and omitted from their productions.” This involves review of a “statistically valid random sample” of documents coded as non-responsive. Id. at *1.

This standard practice is commonly called “elusion testing,” review of the “discard pile,” or, review of  the “null set.”  See Deal Genius, LLC v. O2COOL, LLC, 682 F. Supp. 3d 727, 734–35 (N.D. Ill. 2023) (“explaining that elusion testing, where the producing party reviews a random sample from the ‘null set’ of documents that did not hit on search terms and documents that were deemed non-responsive, is a ‘standard quality assurance practice’ that can ‘confirm the reasonableness and proportionality’ of the production”).

VALIDATION OF DOCUMENTS CODED AS RESPONSIVE – REJECTED

Defendants argued that validation of documents coded as responsive, to find false positives, was superfluous.  They asserted that Fed.R.Civ.P. 26(g) required that they certify that their response is complete and correct.  The court wrote: “Rephrased in statistical terms, producing parties must confirm that their false-negative rate falls within acceptable limits.”  In my less elegant words, a production may include nonresponsive documents; but, it cannot be a “dump truck.”

The court explained:

Review of documents marked responsive falls outside the bounds of litigants’ Rule 26(g) obligations because such review cannot identify whether documents are missing from a production, rendering it incomplete. Confirming that documents designated responsive are truly responsive reveals only the production’s false-positive rate, a proxy measure for whether the litigant has overproduced discovery material. But the Federal Rules do not prohibit parties from overproducing documents. Accordingly, this Court will not require defendants to incur additional costs re-reviewing documents that they have previously coded as responsive and intend to produce, barring claims of privilege. [emphasis in original].

VALIDATION OF DOCUMENTS EXCLUDED FROM THE UNIVERSE – REJECTED

The second strata consists of “ documents excluded from the universe of ESI material subject to discovery review.”  In other words, Plaintiffs asked for a review of documents that Defendants had not collected and that, presumably, were  not in Defendants’ litigation review platform.

The court wrote that examination of this set of documents, the “Excluded Set,” “could reveal false-negatives: responsive materials that should be produced but were erroneously omitted from the universe of materials collected for discovery review.”

However, the court responded that Plaintiffs’ request was duplicative and made too late, long after collection.  It wrote:  “Yet the Court is puzzled why plaintiffs request review of the Excluded Set after discovery review is largely complete, given that the parties also intend to review the Excluded Set for responsive material prior to beginning that review.” [emphasis in original].

The court explained that “ESI discovery generally proceeds in two phases: document collection and merits review.”  The parties had earlier “set forth agreed upon parameters for collecting the universe of documents that will be subject to merits review.”  That earlier agreement had required statistical sampling.

Insofar as the parties have agreed to statistically validate the completeness of the set of documents collected for merits review before even beginning that review, the Court finds that further validation of the Excluded Set after merits review is largely complete would be duplicative and unnecessary.

However, Plaintiffs made a different argument—so-called “substantial completeness evaluation.”  They argued that:

[T]heir proposed validation efforts “answer different questions at different points in time,” because search term validation “tests whether agreed terms are performing as intended before review begins,” while substantial completeness validation of the Excluded Set “tests whether the entire process — including all downstream coding decisions, review workflow, and production choices — resulted in a complete production at its conclusion.”

This argument was unsuccessful because the court held that “the Excluded Set is a collection of documents excluded before merits review begins and not subject to downstream coding decisions, review workflows, and production choices.”

Plaintiffs also contended that “the prevailing practice is for parties producing discovery to validate the Excluded Set both upon its creation and after merits review….”  The court noted that the authorities are split; however, it held that “the Court will not require producing parties to incur the cost and burden to re-validate the Excluded Set at the substantial completeness stage, provided that they statistically validate that documents excluded from merits review do not contain responsive material before beginning that review.”

I would add that “substantial completeness validation” of the Excluded Set could de-rail a case and mandate a “do over.”  If a sufficient number of false negatives was found in that set—and sufficiency is always debatable–presumably Defendants would have to engage in a new collection, review, and production process.

This blog was initially posted on  Electronic Discovery Reference Model

The Court ORDERS a counsel-supervised search of personal email and personal cell phone data, including messaging applications, for Dumont, Catalano, Barnes, Pepoli, Fonseca, and Hillis. The search shall use the proposed search terms—“Derrick Washington,” “Washington,” “DW,” “W89316,” “BLACC,” and “Black, Latino, Asian Cultural Coalition”—and shall be limited to the period from November 1, 2019 through August 1, 2020.

The search shall be conducted by, or directly overseen by, defense counsel. It shall not be left to the individual Defendants to determine unilaterally whether potentially responsive communications exist. The Court does not require wholesale forensic imaging of any personal device. ….

As to the remaining individual Defendants, each shall file on the docket a sworn affidavit by September 16, 2026 attesting that, after conducting a diligent search consistent with the parameters above, Defendants do not have any communications responsive to the above search terms.

Washington v. Mass. Dept. of Corrections, et al., 2026 WL 2454275 (D. Mass. Aug. 21, 2026)(emphasis added).

For a discussion of a parallel issue regarding use of personal devices in the private sector, please see Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May, 20, 2024).

For a discussion of the requirement of attorney supervision of a client search, please see:

• “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024);
• Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021);
• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011).

This blog was initially posted on  Electronic Discovery Reference Model

Because defense counsel improperly instructed a defense deponent not to answer questions, the Court ordered the deposition to be re-opened and cautioned counsel.  Because the requestor failed to establish a foundation, the request for a forensic examination of the opponent’s cell phone was denied.  Because one party impeded discovery, the opponent was awarded additional deposition hours.  Because one party produced 1,600 pages of text messages after deposition, the deposition was re-opened.

INSTRUCTIONS NOT TO ANSWER DEPOSITION QUESTIONS

Plaintiff deposed school board employees. The Court wrote:  “Survivor A contends that counsel for the School Board improperly instructed a witness ‘not to answer a basic question’ and tendered an excerpt of the deposition transcript in support of his claim…. The transcript excerpt reveals an unnecessarily contentious exchange between counsel, both in and outside the presence of the witness.”

The Court noted that, under Fed.R.Civ.P. 30(c)(2), deposition testimony is generally taken subject to objection.  Instructions not to answer are limited to privilege, enforcement of a court order, and to present a Rule 30(d)(3) motion based on bad faith or an effort to harass.  The Court also noted its Discovery Guideline which made it presumptively improper to instruct a witness not to answer, except under Rule 30(d)(3).

So, here is what the Court said happened:

Here, the deposition transcript reflects that the School Board’s counsel objected to Plaintiff’s counsel’s proposed line of questioning regarding text messages between Survivor A and Ms. Arnold [who was the “then-wife” of Survivor A’s “then-teacher”]  and repeatedly instructed the witness not to respond….

The Court added:

When there is an objection to a deposition question, counsel are expected to rise above their roles as advocates for a particular party, and, acting as officers of the court, resolve their differences on the spot without outside intervention.… The transcript reflects that rather than “rise above,” counsel argued back-and-forth in front of the witness regarding the propriety of the questioning and the basis for instructing the witness not to respond and, ultimately, the School Board’s counsel contacted the undersigned’s Chambers. [cleaned up].

The ruling was unsurprising:

Nearly two decades ago this Court noted that “[i]t has been the law in this circuit for 20 years that lawyers may not instruct witnesses not to answer questions during a deposition unless to assert a privilege.” Boyd, 173 F.R.D. at 144 (citing Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977)). The School Board’s counsel did not assert privilege as the basis for his objection. Rather, he contended that Plaintiff’s counsel was asking about documents the witness had not seen previously … and was attempting to elicit an improper opinion…. The School Board’s counsel also argued that the question had no foundation … and asserted without particularity that Plaintiff’s counsel had been “badgering” the witness “all day with questions” …. None of these objections support an instruction that the witness should not respond to the questions posed. Counsel for the School Board’s instructions in that regard were therefore improper. Moreover, his behavior and language were unacceptable and inconsistent with this Court’s Discovery Guidelines, which require attorneys “to behave professionally and with courtesy towards all involved in the discovery process.” Local Rules, Appx. A, Guideline 1 ¶ d. Counsel for the School Board is cautioned that he must advocate within the bounds of this governing framework. The witness’s deposition will be reopened so that Survivor A may complete his questioning. [emphasis added].

FORENSIC EXAMINTION OF SURVIVOR A’S CELL PHONE

The school board sought a forensic examination of Survivor A’s cell phone.  Survivor A’s counsel replied that the existence of that phone was known to defense counsel before Survivor A was deposed. Additionally: “Survivor A’s cellular telephone contains 1,428 text chains and approximately 7,000 photographs and 3,000 videos that span approximately eight years, and that some of the material is protected by privilege.”

Further, Survivor A reported that “Survivor A has worked with Defendants to find and produce voluminous discovery from the cellular telephone, including using 34 search terms, ‘most of which came directly from Defendants’ counsel.’”

The school board asserted that a forensic examination was needed for a complete record.  But the Court wrote: “The School Board does not, however, identify any gap in Survivor A’s production….  Instead, the School Board posits that some material on the cellular telephone was deleted.”

The defense argument fell flat: “This argument carries little weight because it lacks an articulated foundation or timeline.”

In an argument that in my opinion borders on frivolous: “The School Board further contends that ‘Plaintiff’s counsel should not be the determinator [of] what information…should be disclosed to the defendants.’”

The Court wrote: “Yet, that is precisely how discovery operates. The discovery process is designed to be extrajudicial, and it relies on responding parties to search their own records and produce documents or other data.” [cleaned up].[1]

It also provided a detailed analysis of the predicate for requesting a forensic examination:

Federal Rule of Civil Procedure 34 governs, among other things, a request to “inspect, copy, test, or sample” electronically stored information, which includes forensic examination of electronic devices. Fed. R. Civ. P. 34(a)(1)(A)…. Making forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence…. What is more, the Advisory Committee on Civil Rules has cautioned that “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.”…. A forensic examination of electronically stored information—something sister courts in this Circuit have described as “a drastic discovery measure,” … must therefore be proportional to the needs of the case. …  A request for forensic examination is, among other things, “subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative, duplicative or seeks discovery that could be obtained from some more convenient, less burdensome[,] or less expensive source”. [cleaned up]

Applying those principles, the Court rejected the school board’s request:

Here, the School Board has not explained how Survivor A’s discovery responses are insufficient or why forensic imaging is warranted and proportionate to the needs of this case, particularly in light of the intrusive nature of a forensic examination of a personal cellular telephone.

The Court resolved other disputes, including one over additional deposition hours based on a post-deposition disclosure by Survivor A of 1,600 pages of text messages, resulting in an additional 3.5 hours of deposition.

Because of the school board’s “animosity” and because it had “foreclosed questioning altogether in at least one deposition,” Survivor A was granted 35 additional deposition hours.

For related information, see also:

• Request to Appoint Neutral Forensic Expert Denied as Speculative and Unsupported
• Standard for Court-Ordered Forensic Examinations – When Does Misconduct “Cross the Rubicon”?
• Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part
• Another Decision on Forensic Imaging of an Opponent’s Cell Phone
• Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland
• District of Maryland Sets Guidelines for Cell Phone Preservation in Place

_____

[1] See generally Unsupervised Self-Collection Predictably Led to Problems and “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System.

“The Court writes specifically here to address the portions of the Proposed Order that pertain to ‘Attorney’s Eyes Only Material,’ and how such material will be provided to Defendant Adeleke.”  Jane Doe v. Adeleke, et al., 2026 WL 2283015 (S.D.N.Y.  Aug. 7, 2026).

The proposed AEO materials included “all documents containing Plaintiff’s personal identifying information, all records concerning Plaintiff’s medical and mental health care history, all documents within the confidential files of DOCCS OSI, and any documents that contain personal identifying information of non-party victims.”

The proposed order stated that Defendant Adeleke would receive only a redacted copy of AEO materials, unless otherwise agreed by the parties or ordered by the court.

The court stated two principles:

• “In fashioning appropriate procedures for the exchange of discovery in this case, this Court is mindful of the fact that courts have held that a pro se party, as a party to an action, must have access to the materials that an attorney would if he were represented by counsel.” Id. at *2 (cleaned up).
• “That said, courts have approved various procedures for limiting access to materials by pro se parties during the course of litigation in light of the particular facts and circumstances of the cases.” Id.

The court wrote that there are “many ways” in which a document can be redacted.  Some permit the reader to understand the contents of the remainder of the document. Others are extensive. Here, it was not clear what was being proposed. The court explained the problem:

At this early stage of discovery, it is not clear what the scope of redactions will be in the documents that are marked as “Attorney’s Eyes Only Material” and produced to Defendant Adeleke in redacted form, or how easy or difficult it will be for Defendant Adeleke to determine what information has been redacted from these documents. Paragraph 5 of the Proposed Order provides a procedure by which parties are able to object to the designation of any document as “Attorney’s Eyes Only Material,” but this procedure is only meaningful if the receiving party understands what is being withheld.

The court solved the problem by mandating a redaction log.

Here, for Defendant Adeleke to understand what is being withheld in the “Attorney’s Eyes Only Material” documents or other things that are produced to him, and to permit him to make informed determinations regarding whether he needs to invoke the dispute procedures under Paragraph 5 of the Proposed Order, it is hereby ordered that any party that produces documents or other things designated as “Attorney’s Eyes Only Material” to Defendant Adeleke, and redacts the documents or other things in accordance with Paragraph 12(c) of the Proposed Order, must provide a detailed log with an appropriate description of the withheld information. If Defendant Adeleke objects to the designation of any documents or other things as “Attorney’s Eyes Only Material,” he must proceed according to the procedure set forth in Paragraph 5 so that the parties can meet and confer and determine whether any compromise resolution is possible.

This blog was initially posted on  Electronic Discovery Reference Model.

One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.”  Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026).

The court wrote that:

[N]o federal or local rule, statute, or binding case law automatically stays discovery pending a ruling on a motion to dismiss. Nor is a stay of discovery permitted merely because defendant believes it will prevail on its motion to dismiss: “[H]ad the Federal Rules contemplated that a motion to dismiss under FED. R. CIV. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect.”

It added: “As a matter of federal procedure, the request to stay discovery is considered a motion for protective order under Rule 26(c)(1)(A)-(B).” [emphasis added].

That holding is important because it sets the governing “good cause” standard: “Good cause may exist when the party from whom discovery is sought shows that it would suffer ‘annoyance, embarrassment, oppression or undue burden or expensive’ [sic] absent a stay. Courts are accorded the discretion to stay discovery where the disposition of a motion to dismiss might preclude the need for discovery entirely.”

However, there must be a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.”  Therefore: “In determining whether a stay of discovery is appropriate, courts are to balance any harm produced by a stay against the possibility that a motion to dismiss would be granted and eliminate the need for any discovery.”

Further: “A stay of discovery while dispositive motions are pending is more the exception than the rule. Although the exception, courts have issued protective orders to stay discovery pending disposition of a motion to dismiss and/or motion for summary judgment when the party seeking such protection proves its necessity, such as when the dispositive motion raises a purely legal issue. But a stay of discovery is not appropriate when it could prevent a party from having a sufficient opportunity to develop a factual basis to defend against the dispositive motion.”

On the facts presented: “Nakamoto has failed to particularly and specifically demonstrate good cause as necessary to establish that a protective order staying discovery is appropriate in this case. Accordingly, the request to delay resolution of this motion [to compel discovery] until after a decision on the pending motion to dismiss is denied.”

For additional information, please see:

• Request for Expedited Discovery Granted; Motion to Stay Discovery Denied (May 28, 2026)(“courts in this district have followed two guiding principles when examining discovery stays: (1) as a general rule, courts have not been inclined to grant such motions; and (2) courts have imposed a ‘high bar’ where a stay of discovery may be appropriate ‘only in special circumstances,’ where the motion to dismiss is based on qualified or absolute immunity, or lack of jurisdiction.”);
• Motion to Dismiss Does Not Stay Discovery (Nov. 8, 2025)(“Federal Rule of Civil Procedure 26(c) states ‘[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). Defendants, as the parties seeking a stay of all discovery, bear the burden of showing good cause for such a protective order.”);
• Should Discovery be Stayed Pending Ruling on Dispositive Motion?(Apr. 3, 2025)(court applied “a two-part test to determine if delaying discovery is appropriate: (1) whether the pending motion is potentially dispositive of the case, or at least would render unnecessary the discovery at issue; and (2) the pending motion can be decided absent additional discovery.”);
• Discretionary Stay of Discovery Pending Decision on Dispositive Motion(Mar. 13, 2025)(“In this Circuit, district courts assess the following considerations when determining whether a stay is appropriate: ‘(1) the interests of judicial economy; (2) hardship and equity to the moving party if the action is not stayed; [and,] (3) potential prejudice to the non-moving party.’” [citations omitted]).

The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s management agent.

This blog, however, addresses the search methodology issue and Blue Moon’s assertion that Trailsedge must search all current and former unit owners’ email and text messages.  Trailsedge Owners Ass’n., Inc. v. NED Ski Associates, LLC, 2026 WL 2083546 (D. Vt. Jul. 16, 2026).

While the court rejected defendants’ untimely demand to use their search terms, it found gaps in plaintiff’s keywords and ordered broad disclosure.  The court rejected defendants’ demand to search the ESI of all current and former unit owners over more than a decade.  However, based on certain statements of plaintiff, it found that plaintiff had opened the door to additional unit owner disclosure, which was ordered by the court.

SEARCH METHODLOLGY

In my opinion, both parties were at fault when it came to search terms.  Trailsedge decided on its keywords, unilaterally and without consultation.  However, “Trailsedge argues that Blue Moon … never asked to negotiate search terms, and failed to propose its own terms until approximately two years later.”  Id. at *3.

But, “[i]n reply, Blue Moon denies it acquiesced to Trailsedge’s unilateral search process, arguing it did not know Trailsedge had used keyword search terms until many months after the discovery production and was entitled to assume Trailsedge had produced all responsive materials…. Blue Moon also argues that the scope of the requested search is proportional because Trailsedge seeks damages exceeding $10 million for alleged defects dating back to the period when the buildings were constructed and occupied while refusing to identify the date range, custodians, and results of its searches.”  Id. at *4.

The court looked to the Sedona Conference, id. at *4, passim, and  Judge Peck’s decision in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), writing that “when a party uses keyword searches to identify responsive ESI, the search process must be cooperative, well-informed, capable of explanation, and sufficiently transparent to permit the opposing party and the court to evaluate it if challenged.”  It wrote that cooperation and proportionality are the dominant drivers. “As Gross explained, keyword searches must be developed with input from custodians who know the terminology used in the relevant communications and must be tested to ensure accurate retrieval and reduce false positives.” Id. at *5.

The Trailsedge court continued:  “Applying the principles described above to this case, the court first rejects Blue Moon’s request to impose its proposed keyword search” on Trailsedge.  Id. at *5.  It found that those terms may be overbroad, redundant, “or likely to generate excessive false positives.”  Further, Blue Moon was untimely:

Sedona’s principles do not give a party license to wait until late in discovery and then demand a wholesale redo of its opposing party’s collection process using its preferred terms….  Trailsedge also notes that Blue Moon did not request search-term information or propose its own search terms until approximately two years later…. The timing and proportionality considerations weigh against granting Blue Moon’s request in full.

Id. at *5.

However, Trailsedge was not off the hook with its unilateral selection of keywords. It wrote that: “The court… also rejects Trailsedge’s argument that Blue Moon’s delay ends the inquiry. Trailsedge chose to use keyword searches as part of its collection process, and the reasonableness of that process became a fair subject of discovery once it was challenged.” Id. at *6.

Again citing Sedona and Judge Peck, the Trailsedge court noted “the more basic principle that counsel must understand, supervise, and be able to describe the search process used to identify responsive ESI in enough detail to assess its adequacy.” Id. at *6.  Finding “apparent gaps” in the terms designed unilaterally by Trailsedge, the court wrote:

Trailsedge has not met its obligation to provide enough information to permit a meaningful assessment of whether the searches were reasonable and proportional. The record does not show that Trailsedge has identified the custodians searched, the date ranges applied, the dates the searches were conducted, the terms used for each custodian or source, or the results returned by each term….  Trailsedge must therefore provide additional information about its search methodology.

Id. at *6.  It added that Trailsedge’s  “omission of central party names and words related to critical legal issues raises a sufficient question about the adequacy of Trailsedge’s prior search sufficient to warrant additional discovery.”  Id.

Accordingly, within fourteen days, Trailsedge shall serve on Defendants a written description of its prior ESI search methodology. That description shall identify: (1) each custodian whose emails, text messages, or other ESI were searched; (2) each data source searched; (3) the date range applied to each search; (4) the date on which each search was performed; (5) the search terms used for each custodian or source; and (6) the number of hits returned by each term (to the extent reasonably available). Trailsedge shall also state whether custodians were instructed to use particular search terms, whether custodians self-selected additional terms, and what steps counsel took to supervise or validate the searches.

Id. at *6.  This was to be followed by a court-ordered “meet and confer.” Id.; see generally, the Hon. Paul W. Grimm (ret.), Michael D. Berman, et al., “Discovery about Discovery: Does the Attorney Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information,” 37 U. Balt. L. Rev. 413 (2008).

SEARCHES OF EVERY CURRENT AND FORMER UNIT OWNER

The court explained the unit owner issue as follows:

Blue Moon seeks an order requiring Trailsedge to collect and produce responsive documents from all current and former unit owners for the period of January 1, 2011 through May 12, 2023…. Blue Moon argues Trailsedge was required to search all unit owners’ files because Trailsedge “is suing on behalf of all unit owners” and because Trailsedge’s initial disclosures allegedly identified members, not just Board members, as persons likely to have discoverable information.

Id. at *7. “Trailsedge responds that the Association is a Vermont nonprofit corporation distinct from its members and that the unit owners are not parties or custodians of Association records merely because they own units…. Trailsedge further argues that, except in limited governance matters, the Association acts through its executive board under the Vermont Nonprofit Corporation Act and that the Association’s statutory authority to litigate in its own name on behalf of itself or unit owners does not collapse the distinction between the Association and its members….  Trailsedge also argues that the request is disproportionate because Trailsedge consists of twenty-four units that have been bought and sold over the years by an unknown number of owners and Blue Moon seeks documents from January 1, 2011 through May 12, 2023.”  Id. (emphasis added).

The court resolved the issue by applying the “possession, custody, and control” and proportionality  standard of Fed.R.Civ.P. 34.  “In the District of Vermont, ‘control’ is construed broadly and is not limited to legal ownership or actual physical possession; documents may be within a party’s control when the party has the ‘right, authority, or practical ability’ to obtain them.”  Id. at *7.

It held that Blue Moon had the burden of proving control by Trailsedge and failed to carry it: “The record also does not support treating all unit owners as custodians simply because some unit owners may possess relevant information. Rule 34 control requires more than relevance.”  Id. at *7.  The court noted that the Sedona conference calls for “caution” in evaluating information in the possession of non-parties.

Although the [Sedona Conference] Commentary’s recommended “legal right” standard is narrower than the “practical ability” standard applied by district courts in the Second Circuit, it identifies generally applicable practical and fairness concerns implicated when discovery obligations are extended to ESI held by third parties. The Commentary explains that an expansive approach may require parties to preserve, search, and produce documents they do not actually possess and may not have the ability or legal right to obtain…. That concern is present here. Blue Moon has shown that unit-owner communications may be relevant, but it has not shown that Trailsedge has actual possession, legal authority, or a practical ability to obtain every current and former unit owner’s personal emails and text messages on demand.

Id. at *7 (emphasis added).  The court also evaluated proportionality: “The documents Blue Moon seeks may be relevant to notice, knowledge, and statute-of-limitations issues. Blue Moon’s requested owner-wide search, however, would encompass more than twelve years, cover all current and former owners of twenty-four units, and include potentially sensitive personal texts and emails.”  Id. at *8.

However, Trailsedge was not off the hook. Its discovery responses “reasonably could have led Blue Moon to believe that at least some non-Board Association members had supplied documents or information.” Id. at *8.  In my words, Trailsedge opened the door.  Therefore:

In light of the ambiguity created by Trailsedge’s interrogatory responses, however, the court finds the responses require clarification. Rule 26(g) requires Trailsedge’s discovery responses to be formed after a reasonable inquiry, and Rule 26(e) requires supplementation if the responses were materially incomplete or incorrect. Fed. R. Civ. P. 26(e), (g). Because Trailsedge’s responses suggest that some member-produced materials were considered but do not identify which members provided documents, what sources were searched, or whether any non-Board member communications were requested or reviewed, Trailsedge must clarify those issues in the search-methodology disclosure ordered in the previous section. The disclosure shall state whether Trailsedge requested documents from any non-Board unit owners; identify any non-Board unit owners from whom Trailsedge obtained documents or information used in preparing its discovery responses or productions; identify the categories of documents obtained from those members; and certify whether Trailsedge has produced all responsive, nonprivileged documents from those member-provided materials that are within its possession, custody, or control.

Id. at *8.

For more on “possession, custody, and control,” see:

• Possession, Custody, or Control – Need for a Uniform National Standard – Part II;
• Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?