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Parkcrest Builders, LLC v. Housing Authority of New Orleans

United States District Court, E.D. Louisiana

April 6, 2017

PARKCREST BUILDERS, LLC
v.
HOUSING AUTHORITY OF NEW ORLEANS

         SECTION: “J” (4)

          ORDER AND REASONS

          KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE

          Before the Court is a Motion to Amend ESI Protocol (R. Doc. 117) filed by Liberty Mutual Insurance Company (“Liberty”), seeking an order from the Court to modify the existing ESI Protocol. The motion is opposed. R. Doc. 128. The motion was submitted on April 5, 2017 and heard with argument that same day. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

         I. Background

         The facts of this case are well known to the Court given the extensive pretrial motion practice in this case. See, e.g., R. Doc. 107. As such, the Court will forgo a detailed account of underlying facts and procedural history. However, for purposes of the underlying motion, the Court notes that the undersigned held a discovery conferences on December 1, 2016 as well as on December 14, 2016 to help facilitate discovery and develop and ESI Protocol. R. Docs. 62 & 65. On December 19, 2016, the undersigned approved the ESI Protocol drafted and agreed to by Parkcrest, HANO, and Liberty. R. Doc. 66.

         At this time, Liberty has filed a motion to amend the ESI Protocol. R. Doc. 117. Parkcrest Builders, LLC (“Parkcrest”) has joined and adopted the motion as well. R. Doc. 126. In particular, Liberty and Parkcrest seek to amend the ESI Protocol to allow for production of correspondence from entities other than “Key Persons, ” to specific exactly what metadata fields should be included in a .TIFF production, and to allow for a comprehensive search methodology. R. Doc. 117, p. 1.

         The Housing Authority of New Orleans (“HANO”) has opposed the motion to amend. R. Doc. 129. HANO argues that the original ESI Protocol was the result of negotiations between the Parties and that Liberty and Parkcrest cannot now amend the protocol to make it more burdensome on HANO while removing their own obligations to meet and confer. Id. at p. 1-2.

         II. Standard of Review

         Discovery of documents, electronically stored information, and things is governed by Federal Rule of Civil Procedure 34. Rule 34 allows a party to request the production of “any designated documents or electronically stored information” or “any tangible things.” Id. Similarly, Rule 33 allows a party to serve another party written interrogatories which “must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). Both Rule 33 and 34 allow a party to ask interrogatories and request production to the extent of Rule 26(b). Fed.R.Civ.P. 33(a)(2); 34(a).

         Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense ..... ” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering the important of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

         Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.

         III. Analysis

         At this time, Liberty has filed the instant motion to compel seeking an order of the Court to modify the current ESI Protocl to allow for production of correspondence from entities other than “Key Persons, ” to specific exactly what metadata fields should be included in a .TIFF production, and to allow for a comprehensive search methodology. R. Doc. 117, p. 1. In particular, Liberty has proposed that changes be made to ensure that the ESI Protocol does not limit the scope of discovery under the Federal Rules of Civil Procedure (R. Doc. 117-1, p. 16, 19); clarify that discovery is permitted beyond named “key persons” (R. Doc. 117-1, p. 23); add certain key persons to the list of key persons for HANO (R. Doc. 117-1, p. 25); allow for the Requesting Party to have 10 additional terms/queries beyond those employed by the Producing party (R. Doc. 117-1, p. 27); expand the size of returns that are presumed overbroad from 250 megabytes to 250 gigabytes (R. Doc. 117-1, p. 28); and, finally, require documents produced in .TIFF format contain the following metadata: Begdoc, Enddoc, BegAttach, Endattach, DateCreated, DateSent, DateReceived, Date Last Modified, TimeCreated, TimeSent, TimeReceived, TimeLast Modified, Author, From, To, CC, BCC, Subject, Title, Filename, MD5Hash, Filesize, File Extension, Application, Number of Attachments, Custodian, File Location and File Type (R. Doc. 117-1, p. 28). Parkcrest has agreed to these changes and has joined Liberty in the motion.

         HANO opposes the changes. R. Doc. 129. In particular, HANO objects because the changes appear to place a greater burden on HANO as opposed to the other parties. Id. at p. 1. HANO also notes that the changes appear to remove the Parties' obligation to meet and confer. Id. Finally, HANO further argues that the amendments would require HANO to reproduce ...


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