Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation

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Weidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. Jun. 9, 2021), involved a suit for alleged brake defects.  Near the end of discovery, plaintiff moved to compel further searches by Ford.  The motion was denied.

The Weidman court provided a comprehensive discussion of the December 2015 amendments to the Federal Rules of Civil Procedure and proportionality.

It also discussed the burden imposed on a party moving to compel additional production where the producing party states that it has fully responded.

In Weidman, defendant stated that it had fully responded to plaintiff’s discovery.  However, Plaintiff believed that there must be “more.”

The court wrote that, with no credible evidence to support that speculation, a court will usually not compel a producing party to do more work.  It quoted Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880, at *3 (W.D. Ky. Apr. 20, 2021), to provide examples of what was needed:

Credible evidence is more than mere speculation and must permit a reasonable deduction that other documents may exist or did exist and have been destroyed. Specifically, this might include presentation of responsive, but withheld, documents that the moving party obtained from another source or testimony demonstrating knowledge of the existence of responsive documents.

Id. at *4; see Blog, “Burden of Proof: Sanctions for Intentional Deletion of Text Messages,” “District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Cases” (noting unsettled burden of proof for spoliation motion), and “Burden of Proof of Spoliation.”   A more detailed explanation of the need for factual support of a “there must be more” argument can be found in Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021).