The defendant, Hayward Baker, Inc. (“HBI”), seeks an order compelling: (1) the plaintiff, LaShip, LLC (“LaShip”), to produce all documents and information supporting its claim for damages; (2) the plaintiff, Terrebonne Port Commission (“TPC”), to produce all documents and information supporting its claim for damages;[1] (3) LaShip to expand its production of electronically stored information (“ESI”) to five additional custodians; and (4) LaShip and TPC to complete production of ESI.

LaShip responds that the information sought regarding damages was produced and it is working to produce the remaining ESI. It contends that production of ESI for the five additional custodians is not warranted. TPC reports that is working to produce the ESI. Rec. doc. 134. HBI replies that the plaintiffs' responses are inadequate, in part, because of pending deadlines.

The pretrial conference is set for October 10, 2013 and trial is set for October 28, 2013. The discovery deadline is August 31, 2013. Rec. doc. 103.[2]

HBI seeks: (1) a computation of each element and category of damages claimed by LaShip; and (2) all related documents. It has obviously obtained two orders requiring LaShip to provide the discovery.[3] On June 21, 2013, LaShip served expert disclosures where it reports claims for $39.7 million in remedial work allegedly caused by HBI's defective work. Rec. doc. 132 (Exhibit 5 at 3). HBI contends that LaShip has not produced any support for these claims.

LaShip responds that: (1) it obtained proposals from contractors to perform remediation work at the facility; (2) it identified the contractors as persons who will testify to the scope and cost of the work; (3) the contractors objected to the production of certain proprietary information to HBI; and (4) after the resolution of these objections, the documents regarding the remediation claims were produced. Rec. doc. 134. HBI responds that “the plaintiffs' failure to have completed their production of ... (“ESI”) necessarily means that their recent production does not constitute the universe of relevant documents.” Rec. doc. 139 at 2.

LaShip's production of hard copy documents relating to the remediation claims is complete. ESI is addressed below.

*2 LaShip collected ESI for three custodians: Lyman Martin; Abram Hunt; and Derek Bascle. It describes them as the primary points of contact on the projects at issue and all decisions and communications flowed through them. Rec. doc. 134 at 5. On May 16, 2013, LaShip served its responses to HBI's second set of discovery requests. It identified Martin, Hunt, Bascle and four other persons in response to an interrogatory which included a request for the identification of all persons “who had any other involvement whatsoever on the Buildings Project....” Rec. doc. 132 (Exhibit 8 at 2-3). The other four persons are Norman Callais, Bruno Bond, Charles Fortenberry, and Russell Cole. Based on LaShip's discovery response, HBI contends that LaShip's ESI custodian search should be expanded to these four persons. HBI argues that LaShip cannot dictate the relevant ESI custodians.

This case has been pending since March 2011. The identification of custodians for an ESI search should have been a priority in the early stages of the litigation. Even assuming that LaShip failed to identify Callais, Bruno, Fortenberry and Cole in its initial disclosures, HBI was on notice to their “involvement” by May 16, 2013. Considering the deadlines in the scheduling order, HBI should have attempted to resolve the custodian issue in May and sought expedited consideration if it could not be resolved. Based on the breadth of interrogatory no. 23, it is not clear that adding Callais, Bruno, Fortenberry and Cole as custodians for ESI production will result in the production of information which is not produced by the ESI production for Martin, Hunt and Bascle.

HBI's request to add Callais, Bruno, Fortenberry and Cole as custodians for ESI production is denied.

On November 7, 2008, Martin (one of the three custodians who LaShip subjected to an ESI search) emailed Gary Chouest and asked whether he wanted to put eight foot soil columns in a building and extend the rails in the cement or put the soil columns under the slab. The costs associated with the options were described. Rec. doc. 132 (Exhibit 9). HBI contends that this demonstrates Chouest's involvement in the events giving rise to the claims. Chouest was not identified by LaShip in response to Interrogatory 23. LaShip responds that: (1) Chouest did not communicate with HBI or any other contractor; and (2) Martin, Hunt and Bascle kept Chouest informed, while they communicated with the contractors. HBI replies that it is entitled to explore the extent of Chouest's involvement.

HBI's request to add Chouest as a custodian for ESI production is denied.

HBI contends that there must be a firm deadline for LaShip and TPC to complete their production of ESI. It reports that, as of August 12, 2013, TPC had not produced any ESI. Rec. doc. 139.

The plaintiffs reported that: (1) the process of securing and reviewing ESI for production is ongoing; (2) it is taking longer than they initially expected; (3) LaShip made what the plaintiffs describe as a “less sophisticated production” of ESI; (4) LaShip has produced the “bulk of ESI in this case;” (5) as of August 6, 2013 TPC and HBI had not agreed on search terms; and (6) TPC had no intention of unduly delaying the ESI production. The plaintiffs did not provide a date by which they would complete production of the ESI.

The parties shall proceed as follows:

IT IS ORDERED that HBI's motion to compel (Rec. doc. 132) is GRANTED in PART and DENIED in PART as provided herein.

IT IS FURTHER ORDERED that the deadline for an appeal from this order is Monday, August 26, 2013. In the absence of an order from the District Judge, this discovery order will not be stayed pending appeal.

TPC was added a plaintiff on March 6, 2013. Rec. doc. 118.

This is the fourth trial setting: (1) December 12, 2011 (Rec. doc. 11); (2) March 26, 2012 (Rec. doc. 43); March 18, 2013 (Rec. doc. 84); and (4) October 28, 2013 (Rec. doc. 103).

The October 26, 2011 discovery order requires that, “LaShip shall ... complete its production of documents, including documents relating to its claim for damages.” Rec. doc. 37 at 2. A February 22, 2012 discovery order requires that LaShip “shall: (1) produce all documents sought by HBI supporting the expenditures identified in the spread sheet; and (2) designate a representative to testify concerning the documents and all computations.” Rec. doc. 76 at 2.