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E=Frustrated Court Crafts ‘New and Simpler Approach to Discovery,’ Identifies Search Terms to be Utilized by Plaintiff, posted in Case Summaries by K&L Gates


Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)

In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a ‘new and simpler approach’ to discovery, including the identification of 13 search terms/phrases to be utilized when searching ‘ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .’ The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its ‘good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].’

Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant. At that time, the court warned the plaintiff ‘not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.’ Plaintiff subsequently produced documents on nine separate occasions.

Following the prior motion to compel, Defendant also learned, for the first time, of a ‘five-step development process,’ that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.

Taking up the motion, the court expressed its frustration with ‘the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.’ The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order ‘[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.’ ‘Instead,’ the court continued, ‘the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . . .’