United States District Court, N.D. Iowa, Western Division
WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE.
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
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).
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
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.
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.
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.
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
The Parties' Arguments
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
(1) Documents that reference potassium acetate or a product
that contained potassium ...