American Municipal Power, Inc. v. Voith Hydro, Inc.

Filing 46

MEMORANDUM OF DECISION: Pursuant to the discovery conference held May 24, 2018, the discovery request is overly burdensome and not proportional to the needs of the case. Signed by Magistrate Judge Elizabeth Preston Deavers on June 4, 2018. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

AMERICAN MUNICIPAL
POWER, INC.,
Plaintiff,
Case No. 2:17-cv-708
vs.

Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

VOITH HYDRO, INC.,
Defendant.
MEMORANDUM OF DECISION
This matter came before the Court for a discovery conference on May 24, 2018. Counsel
for both parties appeared and participated in the conference.
The parties provided extensive letter briefing regarding certain discovery disputes
relating to the production of Electronically Stored Information (“ESI”) and other documents.
Specifically, the parties’ dispute centers around two ESI-related issues: (1) the propriety of a
single-word search by Project name proposed by Defendant Voith Hydro, Inc. (“Voith”) which it
seeks to have applied to American Municipal Power, Inc.’s (“AMP”) ESI;1 and (2) the propriety
of AMP’s request that Voith run crafted search terms which AMP has proposed that are not

1

Voith seeks to have AMP use the names of the four hydroelectric projects at issue in this case
(Cannelton, Smithland, Willow and Meldahl) as standalone search terms without qualifiers
across all of AMP’s ESI. AMP proposed and has begun collecting from searches with numerous
multiple-word search terms using Boolean connectors. AMP did not include the name of each
Project as a standalone term.

limited to the Project’s name.2 After careful consideration of the parties’ letter briefing and their
arguments during the discovery conference, the Court concluded as follows:


Voith’s single-word Project name search terms are over-inclusive. AMP’s position as the
owner of the power-plant Projects puts it in a different situation than Voith in terms of
how many ESI “hits” searching by Project name would return. As owner, AMP has
stored millions of documents for more than a decade that contain the name of the Projects
which refer to all kinds of matters unrelated to this case. Searching by Project name,
therefore, would yield a significant amount of discovery that has no bearing on the
construction of the power plants or Voith’s involvement in it, including but not limited to
documents related to real property acquisitions, licensing, employee benefits, facility
tours, parking lot signage, etc. While searching by the individual Project’s name would
yield extensive information related to the name of the Project, it would not necessarily
bear on or be relevant to the construction of the four hydroelectric power plants, which
are the subject of this litigation. AMP has demonstrated that using a single-word search
by Project name would significantly increase the cost of discovery in this case, including
a privilege review that would add $100,000 - $125,000 to its cost of production. The
burden and expense of applying the search terms of each Project’s name without
additional qualifiers outweighs the benefits of this discovery for Voith and is
disproportionate to the needs of even this extremely complicated case.

2

AMP contends that if Voith connects all its searches together with the Project name, it will not
capture relevant internal-Voith ESI relating to the construction claims and defenses in the case.
AMP asserts Voith may have some internal documents that relate to the construction projects
that do not refer to the Project by name, and included three (3) emails with these criteria it had
discovered as exemplars. AMP proposes that Voith search its ESI collection without reference
to the Project names by using as search terms including various employee and contractor names
together with a list of generic construction terms and the names of hydroelectric parts.
2



AMP’s request that Voith search its ESI collection without reference to the

Project names by using as search terms including various employee and contractor names
together with a list of common construction terms and the names of hydroelectric parts is
overly inclusive and would yield confidential communications about other projects Voith
performed for other customers. Voith employees work on and communicate regarding
many customers at any one time. AMPs proposal to search terms limited to certain date
ranges does not remedy the issue because those employees still would have sent and
received communications about other projects during the times in which they were
engaged in work related to AMP’s Projects. Similarly, AMP’s proposal to exclude the
names of other customers’ project names with “AND NOT” phrases is unworkable
because Voith cannot reasonably identify all the projects from around the world with
which its employees were involved during the decade they were engaged in work for
AMP on the Projects. Voith has demonstrated that using the terms proposed by AMP
without connecting them to the names of the Projects would return thousands of
documents that are not related to this litigation. The burden on Voith of running AMP’s
proposed search terms connected to the names of individual employees and general
construction terms outweighs the possibility that the searches would generate hits that are
relevant to this case. Moreover, running the searches AMP proposes would impose on
Voith the substantial and expensive burden of manually reviewing the ESI page by page
to ensure that it does not disclose confidential and sensitive information of other
customers. The request is therefore overly burdensome and not proportional to the needs
of the case.

3

IT IS SO ORDERED.

DATED:

June 4, 2018

/s/ Elizabeth A. Preston Deavers______
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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