*1 This case involves a construction project. MEI is suing OEC for, among other things, breach of contract. On November 15, 2017, Plaintiff Maintenance Enterprises, LLC (“MEI”) filed a Motion to Compel Production of Documents. [ECF No. 176]. Defendant Orascom E&C USA, Inc. (“OEC”) resists the motion. [ECF No. 183]. MEI filed its reply on December 5, 2017. [ECF No. 187]. A hearing was held on December 7, 2017. Appearing were attorneys: Benjamin Patterson, Christopher Cazenave, and Richard Tyler for MEI; and Rebecca Woods, Chad Brakhahn, and Jeffrey Stone for OEC. For the following reasons, the motion is GRANTED in part, and DENIED in part.

On September 8, 2017, MEI submitted a new set of ESI search terms to OEC. [ECF No. 176-6 at 2-3]. At that time, discovery was scheduled to close on October 31, 2017. [ECF No. 83]. Since then the trial date has been continued until September 24, 2018, and discovery is now scheduled to close on April 13, 2018. [ECF No. 170 at 3–4]. On September 8, 2017, MEI requested OEC perform the new ESI searches and produce the documents generated by those searches. Id. OEC refused to perform the ESI searches unless MEI agree to an amendment of the Protective Order. MEI argues there is “no basis in the Federal Rules or this Court's ESI Order under which OEC can simply refuse to run ESI searches.” [ECF No. 176-1 at 4]. Further, MEI argues “there is no basis in the Federal Rules or this Court's ESI Order under which OEC may use its control over ESI searches as leverage to force MEI's agreement to an amendment of the Protective Order.” Id. “MEI further submits that OEC's refusal to produce is so lacking in merits as to warrant an order requiring OEC to pay MEI's reasonable expenses incurred in making this Motion, including attorney's fees.” Id. at 5. MEI requests the Court order OEC to produce the requested ESI within ten days of this Order. Id.

OEC claims it “can produce the requested documents immediately if it is allowed to stamp all the documents ‘Confidential’ without an individual review of each document to assess whether it merits a confidentiality (or highly confidential) designation.” [ECF No. 183 at 1–2]. OEC claims the ESI search that MEI has requested would amount to it producing an additional 56,812 documents. Id. at 2. The parties have produced several hundred thousand documents in discovery under the existing ESI and Protective Orders, although disputes remain about the use of the “Confidential” designation. OEC argues the current Protective Order essentially requires an individual review of a document before it can designate the document as confidential. Id. OEC claims that given the size of MEI's request individual review would be “crushingly expensive and time-consuming, and would merit an extreme limitation on the new ESI search terms that MEI is allowed to request.” Id.

In response, MEI says that, on September 25, 2017, OEC claimed the new search terms actually triggered 132,360 documents. [ECF No. 187-1 at 1]. However, on October 9, 2017, MEI agreed to a revised set of terms “aimed to further limit false positives,” presumably lowering the number of triggered documents. [ECF No. 176-8]. MEI argues OEC “could have produced the requested ESI months ago with the same improper umbrella confidentiality designation it has used for its past six productions,... [and] OEC's new-found reserve is hypocritical at best.” Id. at 2-3. MEI argues that OEC's claim that document review would be “crushing expensive” does not have merit, and OEC's actions, by umbrella designating documents as confidential, “has been the single largest resource-intensive and expensive issue raised in this litigation to date.” Id. at 3. MEI says “further delay could jeopardize the completion of discovery by April 13, 2018, and requests that the Court order OEC to produce the requested ESI within ten days of the Court's order.” Id.

*2 “[A] party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). A party may also move for an order compelling discovery when “a party fails to produce documents ... as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). “The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). “If the motion is granted ... the court must, after giving an opportunity to be heard, require ... the party or attorney advising that conduct, or both pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). “But the court must not order this payment if ... the opposing party's nondisclosure, response, or objection was substantially justified; or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii—iii).

Here, the Court concludes OEC must produce the documents generated by the new ESI search terms that MEI agreed to as of October 9, 2017, minus any documents that have already been produced. However, in light of the need to complete discovery soon OEC may blanket designate the documents contained in the new ESI search as confidential. OEC has represented to the Court that it is ready to produce these documents immediately if it is allowed to blanket designate them as confidential. Therefore, OEC has until December 13, 2017, to produce them to MEI. If MEI has challenges to the designations of certain documents, MEI may request OEC to de-designate as confidential those documents. Once OEC receives MEI's request to de-designate documents OEC has seven days to respond to MEI's request.[1] Given the size of the documents generated by the new set of ESI search terms and the potential expense on OEC in individually reviewing them, the Court finds that other circumstances would make an award of expenses unjust.

For the reasons stated, OEC's motion, [ECF No. 176], is GRANTED in part, and DENIED in part.

IT IS SO ORDERED.