United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART PLAINTIFFS' MOTION TO
COMPEL DISCOVERY AND FOR SANCTIONS
KAYS, JUDGE UNITED STATES DISTRICT JUDGE
lawsuit arises from Plaintiffs' purchase of an e-Commerce
business, Essential Hardware. Now before the Court is, once
again, the discovery dispute between the parties concerning
the discovery of electronically stored information
(“ESI”) and Plaintiffs' Renewed Motion to
Compel Defendants' Discovery and for Sanctions (Doc. 74).
The motion is GRANTED IN PART.
filed this lawsuit in February 2019. Four months later, the
Court entered its first scheduling order (Doc. 34), which
included a discovery deadline of November 15, 2019;
dispositive motion deadline of December 16, 2019; pretrial
conference setting for June 22, 2020; and trial setting to
begin on July 13, 2020.
August 23, 2019, Plaintiffs filed a motion to extend the
scheduling order's deadlines (Doc. 57), which outlined
several discovery issues, namely that Defendants had failed
to engage meaningfully in discovery. Defendants agreed an
amended scheduling order was necessary (Doc. 62).
days later, Plaintiffs filed a brief addressing their
concerns regarding Defendants' failure to comply with the
principles of discovery for ESI (Doc. 58). Defendants'
response accused Plaintiffs of also failing to complete
discovery (Doc. 59). Defense counsel stated they have
repeatedly informed their clients of their duty to preserve
and retain all relevant information, and they answered some
concerns Plaintiffs have about the collection of ESI. In
their responsive briefing, Plaintiffs offered to meet and
confer about the issues.
on September 2, 2019, the Court issued an order (Doc. 63) to
aid all parties to better facilitate discovery and meet
deadlines. The Court noted that the ESI Principles
promulgated by the Court for the Western District of
Missouri, including going through the recommended checklist
during a Rule 26(f) meet and confer conference at the outset
of discovery, would help the parties resolve any remaining
ESI disputes and avoid future disputes over ESI. To ensure
counsel communicate effectively and minimize discovery
problems related to ESI, the Court ordered the following:
Lead counsel for the parties shall participate in a
meet-and-confer conference by September 10, 2019. At this
conference, lead counsel shall be prepared to discuss: (1)
Defendants' and Plaintiffs' ESI systems; (2)
the specific steps that have been taken to preserve them; (3)
appropriate ESI date ranges, sender, receiver, custodian,
search terms, and similar parameters. The parties shall use
the ESI checklist promulgated by the Court to guide these
discussions. Additionally, lead counsel shall also be
prepared to discuss (4) any specific concerns Defendants have
with respect to ESI or traditional discovery in this case. To
ensure Plaintiffs are prepared to discuss any discovery
concerns Defendants may have, Defendants shall notify
Plaintiffs in writing at least 24 hours before this meeting
of any specific discovery concerns they would like the
parties to address.
(Doc. 63 at 2). Ten days later, the Court amended the
scheduling order (Doc. 67). As is relevant here, the Court
ordered ESI to be substantially produced by September 30,
2019, and it extended the discovery deadline to January 21,
November 5, 2019, Plaintiffs' counsel filed a motion to
compel discovery (Doc. 69). Plaintiffs argued that Defendants
had failed to meaningfully participate in discovery or to
fulfill their discovery obligations. In response, Defendants
acknowledged their failure but represented to Plaintiffs-and
to this Court-that they would fulfill their discovery
obligations “within approximately two (2) to three (3)
weeks…” or by December 10, 2019. (Doc. 70 at 4).
The Plaintiffs agreed to this timeline, and the Court denied
Plaintiffs' motion to compel as moot (Doc. 69).
Defendants did not meet their December 10, 2019 deadline,
Plaintiffs filed this renewed motion to compel discovery and
for sanctions (Doc. 74). Plaintiffs' counsel suggest that
Defendants' counsel have provided woefully insufficient
responses to document requests for over six months.
Plaintiffs seek the production of documents and ESI stemming
from its First Requests for Production and Interrogatories,
which was served on Defendants on May 17, 2019.
respond (Doc. 76), arguing that Plaintiffs only just
completed their document production for ESI on December 6,
2019. Defendants also argue that Plaintiffs have failed to
respond to their requests for discovery sent on or about May
their reply brief (Doc. 77), Plaintiffs acknowledge that
Defendants' refusal to engage meaningfully in discovery
has delayed their own production. Plaintiffs also note that
Defendants have not filed any discovery motion against them,
and to date, only Plaintiffs have meaningfully fulfilled
their discovery obligations. Plaintiffs argue that Defendants
refused to even engage in discussion about search terms and
ESI related issues before and after the Court's
September 30, 2019 deadline for the parties to produce ESI.
Despite Defendants' stonewalling, Plaintiffs nonetheless
completed their production of 95% of its documents and ESI.
now move for the Court to issue an order: “(1)
compelling Defendants to produce the documents requested by
Plaintiffs in their May 17, 2019 requests by December 20,
2019; (2) award Plaintiffs their attorneys' fees, costs,
and expenses for bringing both motions to compel; (3) strike
Defendants' pleadings; and (4) enter an order of ...