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Nachurs Alpine Solutions, Corp. v. Banks

United States District Court, N.D. Iowa, Western Division

July 7, 2017

NACHURS ALPINE SOLUTIONS, CORP., Plaintiff,
v.
BRIAN K. BANKS and NUTRA-FLO COMPANY, Defendants.

          ORDER

          C. J. WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This matter is before the Court pursuant to plaintiff's resisted motion to compel the production of electronically stored information (“ESI”). (Doc. 102). Plaintiff argues that defendants' ESI discovery responses were deficient in that plaintiff believes defendants wrongfully withheld documents generated as a result of a search of ESI on the ground that the documents were deemed beyond the scope of discovery. Neither party requested oral argument on the motion and the Court finds argument unnecessary. For the reasons that follow, the Court grants in part and denies in part plaintiff's motion to compel production of ESI documents.

         II. BACKGROUND

         On March 10, 2015, plaintiff filed suit against defendants in this Court. (Doc. 2). Plaintiff and defendant Nutra-Flo Company (“Nutra-Flo”) are competitors engaged in the business of manufacturing and selling fertilizer. Plaintiff's complaint alleged, generally speaking, that its former employee, defendant Brian Banks (“Banks”), took confidential, proprietary, and trade secret information from plaintiff and provided that information to his new employer, defendant Nutra-Flo. After litigation regarding a preliminary injunction, defendants filed an answer on April 15, 2015, generally denying all allegations. (Doc. 27).

         Discovery followed during which a dispute arose over the search and production of ESI. The Court ultimately entered an order regarding ESI. (Doc. 68). Using search terms approved in the Court's order, defendants searched their ESI for documents containing those search terms. Defendants then reviewed those documents for privilege, duplication, and relevance.

         On March 13, 2017, defendants produced a first batch of ESI, along with a privilege log reflecting documents withheld on privilege grounds. Apparently defendants withheld documents as being nonresponsive (e.g., outside the scope of discovery), but did not so indicate.

         On April 19, 2017, defendants produced a second batch of ESI, along with another privilege log. This production included placer-sheets stating “Non-Responsive File” marking documents defendants believed were nonresponsive. These nonresponsive file sheets represented 235 documents.

         Through discussions, plaintiff apparently discovered there were more than 44, 000 other documents that defendants had withheld from the first batch on the ground that they were nonresponsive. Between the two productions, defendants provided plaintiff with 11, 687 documents, but withheld 44, 337 documents as being nonresponsive.[1]

         Plaintiff took issue with the withholding of documents as nonresponsive and the parties attempted to resolve their differences. At the parties' request, the Court held an informal conference call with the parties to discuss their dispute. Following the conference call, defendants produced a log to plaintiff regarding all documents withheld as nonresponsive. The parties again attempted to work out their dispute regarding ESI and reached a partial compromise. Defendants agreed to produce all of the documents from the second batch that had been withheld as nonresponsive on the condition that: (1) the documents would be designated as Attorneys Eyes Only; (2) the production of the documents would not serve as an admission that the documents were responsive. The parties were unable to reach an agreement as to all of the other documents defendants have withheld on the ground that they were unresponsive.

         III. DISCUSSION

         A. The Parties' Arguments

         Based on a review of the privilege logs, plaintiff believes that defendants have withheld a substantial number of documents that are relevant. Plaintiff has identified 28 categories of documents it believes were properly withheld as unresponsive, but has identified four categories of documents it believes are relevant:

(1) Documents that reference potassium acetate or a product that contained potassium ...

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