United States District Court, E.D. Louisiana
ORDER AND REASONS
WELLS ROBY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
Standard of Review
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.
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
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.
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
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