*1 On August 31, 2022, the Court issued an order granting in part and denying in part Defendant Robert Kupper's (“Kupper”) Motion to Compel. (Doc. No. 110). On October 28, 2022, Kupper filed a Motion for Sanctions alleging Plaintiffs failed to comply with the August 31st order. (Doc. No. 126). On November 14, 2022, Plaintiffs filed a Motion for a Protective Order related to the Court's August 31st order and Kupper's motion. (Doc. No. 131). Both parties filed a motion to expedite their respective underlying motions. (Doc. Nos. 137, 134). For the reasons that follow, Kupper's motion (Doc. No. 126) is DENIED, Plaintiffs’ motion (Doc. No. 131) is GRANTED IN PART, and the motions to expedite are MOOT. (Doc. Nos. 137, 134).

I. BACKGROUND

The discovery process in this case has been complex and challenging for the parties to navigate amicably. On August 31, 2022, the Court issued an order requiring Plaintiffs to include Defendant Kupper's search terms when searching for and producing emails in discovery. (Doc. No. 110). The Court allowed Plaintiffs to exclude Kupper's request for inclusion of derivatives of the search terms. (Id.). The Court also said, “To the extent Plaintiffs are able to exclude anything that is not in the substantive portion of the email, they may do so, e.g., email domains.” (Id.).

Apparently, sometime after the Court issued its order, Plaintiffs ran into issues compiling the electronically stored information (“ESI”) to produce in discovery. Most of these issues appear to arise from Plaintiffs’ inability to exclude non-substantive “hits” when using the search terms. Plaintiffs inform the Court that after consulting with their e-discovery team, they were unable to remove the non-substantive portions from the search results and, as a result, could not decrease the number of responsive documents. Following this realization, the parties engaged in discussions regarding the production of the remaining documents that result from using the search terms ordered by the Court. Plaintiffs argue to strictly comply with the Court's previous order it will result in 885 hours and roughly $186,500 for Plaintiffs’ law firm to sort through the resulting 46,688 documents for responsiveness, confidentiality, and privilege. (Doc. No. 133).

Plaintiffs proposed three different offers to Kupper to ease the process of turning over the results of the search in discovery. First, Plaintiffs proposed Kupper share in a portion of the expense to review and produce the information. Second, Plaintiffs offered to narrow the documents based on certain terms they outlined in their submissions to Kupper and the Court. Third, Plaintiffs suggested the 46,688 documents be designated “Highly Confidential – Attorneys’ Eyes Only” to eliminate the need for a thorough review before production.

Kupper has been unreceptive to negotiating a resolution, relying on the Court's previous order to demand production of the documents. To this end, Kupper has filed the underlying motion for sanctions seeking another order requiring Plaintiffs to produce the documents, monetary sanctions, and additional depositions regarding the yet-to-be produced documents. (Doc. No. 126). Subsequently, Plaintiffs filed their motion for a protective order asking this Court to require Kupper to share in the expense of producing the documents, allow for a reduction in the amount of documents to produce, and/or designate the documents as “Highly Confidential – Attorneys’ Eyes Only.” (Doc. No. 131).

II. LEGAL STANDARD

A. Obligation to Confer and Attend a Status Conference

*2 Under D.N.D. Civ. L. R. 37.1(A), “The parties may not file a discovery motion (e.g., a motion to compel discovery, motion for sanctions, or motion for protective order) until the parties have conferred, either in person or by telephone, for the purpose of making a reasonable, good faith effort to resolve the dispute without involving the court.” (Emphasis added). “A written demand for relief without more is not sufficient; the moving party must make a reasonable effort to confer, and the opposing party must make a reasonable effort to participate.” Id. In addition to these requirements, “the parties must not file a discovery motion until the parties have participated in a telephonic conference with the assigned magistrate judge, unless otherwise ordered by the court.” D.N.D. Civ. L. R. 37.1(B).

B. Rules Governing Sanctions

Under Fed. R. Civ. P. 37(b)(2)(A), “If a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders.” These new orders may include:

Id. Additionally, “Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

C. Rules Governing Limitation of Discovery of ESI

Under Fed. R. Civ. P. 26(b)(2)(B), “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” When filing a motion for a protective order, “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” Id. The Court may still order production of the discovery “if the requesting party shows good cause” and specify the conditions for it. Id. “The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case.” Fed. R. Civ. P. 26(b)(2) advisory committee's note to 2006 amendment.

D. Rules Governing Protective Orders and Cost Sharing

Under Fed. R. Civ. P. 26(b)(2)(C), “The Court may specify conditions for the discovery.” Similarly, Fed. R. Civ. P. 26(c)(1) states, “The court may, for good cause, issue an order to protect a party or person from ... undue burden or expense, including ... specifying terms, including time and place or the allocation of expenses, for the disclosure of discovery” and “prescribing a discovery method other than the one selected by the party seeking discovery.” When a party requests ESI, “shifting the cost of production from the producing party to the requesting party should be considered only when inaccessible data is sought.” Peskoff v. Faber, 251 F.R.D. 59, 61 (D.D.C. 2008) (internal quotations omitted).

III. DISCUSSION

A. Local Rule 37.1

*3 Plaintiffs argue Kupper did not follow the requirements of D.N.D. Civ. L. R. 37.1 before filing his motion for sanctions. Plaintiffs allege during their communications regarding the underlying issues, sanctions were not mentioned. Kupper argues the parties have met and conferred because both sides reference “calls and emails between the parties relating to these issues.” (Doc. No. 135).

Kupper's motion for sanctions clearly falls under the authority of Rule 37.1, as a motion for sanctions is explicitly mentioned in the context of discovery disputes. As a result, the parties are required to meet and confer and then attend a status conference with the Court prior to filing such a motion. Here, it appears the parties communicated about the underlying discovery issue, but sanctions were never raised during those discussions. The Court will remind the parties these requirements exist to encourage meaningful discussion and resolution without the involvement of the Court and wasting time, money, and resources. See D.N.D. Civ. L. R. 37.1(A) (mentioning the parties should meet and confer “either in person or by telephone” but making no mention of conferring over email).

Prior to Kupper filing his motion, the Court held a status conference at the request of Plaintiffs, not Kupper, to discuss the underlying discovery issues. During that status conference, the Court ordered the parties to further meet and confer regarding the discovery issue. (Doc. Nos. 122, 123). However, Kupper's counsel did not raise a potential motion for sanctions at that conference or thereafter. No additional status conference was held prior to Kupper filing his motion. (Doc. No. 126). While it appears Kupper did not technically comply with the local rules, the Court will still address his request because it is intermingled with the broader discovery dispute and Plaintiffs’ motion for a protective order.

B. Kupper's Request for Sanctions

It is clear an ongoing dispute existed even after the Court issued its August 31st order. Plaintiffs needed additional time to complete a search using Kupper's search terms. Additionally, the parties have had ongoing discussions regarding the issue, some of which were court ordered. (See Doc. No. 123).

The Court does not believe any sanctions are warranted in this instance. Plaintiffs are making efforts to comply with the Court's order and have now requested the Court to further rule on the issue. (See Doc. No. 131). Additionally, the time needed to search for the information and seek the cooperation of Kupper and further guidance from the Court “make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Therefore, Kupper's request for sanctions and attorney's fees is denied.

C. Kupper's Request for Additional Depositions

Within his motion for sanctions, Kupper requests additional depositions once the new documents are produced. Kupper does not specify who he believes he will need to depose once the documents are produced or why the depositions will be necessary. To the extent this actually becomes an issue, it could be more appropriately addressed in a separate motion. Therefore, the request for additional depositions is denied.

D. Plaintiffs’ Request for a Protective Order

Plaintiffs argue Kupper's search terms have resulted in a vast amount of information that has no relation to this lawsuit. To that end, they claim manually sorting through the information to determine what is relevant to this lawsuit will take substantial resources resulting in an undue burden or cost. They request the Court require Kupper share in the cost to carry out this process, narrow the documents and search terms, and/or designate the documents as “Highly Confidential – Attorneys’ Eyes Only” to eliminate the need for a manual review.

*4 The discovery of this ESI has been confusing and complex from the beginning. This complexity appears to have resulted from the parties miscommunicating and having different understandings of how the process would proceed. It resulted in Plaintiffs spending funds and resources on a technology assisted review process that Kupper ultimately objected to. The Court understands Plaintiffs’ reluctance to spend additional funds and resources to complete the discovery process, as previously ordered by the Court.

Nevertheless, at this point, the Court is less convinced Plaintiffs have demonstrated producing the discovery will result in an undue burden or cost as required by Rule 26(b)(2)(B). To the contrary, Plaintiffs proposed an alternative approach that would protect them from any potential undue burden or expense–designating the documents as “Highly Confidential–Attorneys’ Eyes Only.” Still, the Court does not believe such an extraordinary measure is necessary to protect any potentially sensitive information and prevent excessive costs. The protective order also contemplates information being designated as simply “Confidential.” Designating the documents as “Confidential” will allow the Plaintiffs to disclose the information without added expense, protect the information for use only in this litigation, and allow Kupper's counsel to share the information with him for purposes of his case. Fed. R. Civ. P. 26(c)(1) (allowing a court to specify terms of discovery and prescribe a discovery method other than the one selected by the party seeking discovery). Therefore, the Court grants Plaintiffs’ motion for a protective order in part. They may designate the information as “Confidential” but not “Highly Confidential – Attorneys’ Eyes Only” before turning it over to Kupper.

IV. CONCLUSION

For the reasons articulated above, the Court DENIES Kupper's motion. (Doc. No. 126). Plaintiffs’ motion (Doc. No. 131) is GRANTED IN PART, and they may designate the documents as “Confidential.” The Court finds the parties motions to expedite are MOOT. (Doc. Nos. 137, 134).

IT IS SO ORDERED.

Dated this 4th day of January, 2023.