Elhannon, LLC et al v. The F.A. Bartlett Tree Expert Company

Filing 117

OPINION AND ORDER granting in part and denying in part 95 Renewed Motion to Compel; denying 95 Motion for Sanctions; denying 100 Motion for Sanctions but the ptys are required to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery; denying 109 Motion for Leave to File Supplemental Brief in Support. Signed by Judge William K. Sessions III on 4/18/2017. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

ELHANNON LLC,et al
Plaintiffs,

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v.
THE F.A. BARTLETT TREE EXPERT
COMPANY,
Defendant.

Case No. 2:14-cv-262

OPINION AND ORDER
This case concerns a contract and consumer fraud dispute between
Plaintiffs Elhannon Wholesale Nurseries, LLC (“Elhannon”), a New York
corporation represented by Downs Rachlin Martin LLC, and its
predecessors, and Defendant F.A. Bartlett Tree Expert Company
(“Bartlett”), a Connecticut corporation represented in this action by
Woolmington, Campbell, Bernal & Bent, P.C. On May 23, 2016, this Court
denied Plaintiffs’ motion to compel complete discovery responses and
document production because Defendant represented to the Court that
its discovery responses were complete. ECF 68. Elhannon now renews
that motion on the ground that recent deposition testimony
demonstrates that Defendant’s prior representations to this Court
asserting complete discovery responses were false. ECF 95. In
addition, both parties cross-moved for discovery sanctions.

Id.; ECF

95 and 100. For the reasons described below, the Court grants
Elhannon’s renewed motion to compel in part, denies the parties’
cross-motions for sanctions, and orders the parties to engage in
further meet-and-confer efforts to resolve certain factual disputes.

1

In its amended complaint, Elhannon alleges that between 2007 and
2014, Elhannon and Bartlett entered into a series of contracts calling
for Bartlett to design and execute an integrated pest management
program for Elhannon’s entire tree nursery, which it called the
“MoniTor” program. ECF 27. Elhannon allegedly relied on Bartlett’s
promised expertise and commitment to do whatever was necessary to
properly protect its plants, and did not supervise or direct
Bartlett’s activities. In particular, it relied on representations
made by Jeromy Gardner, a Bartlett employee in its Manchester, Vermont
office, who later supervised the spraying work undertaken at
Elhannon’s nursery. Despite Gardner’s representations and contractual
promises, Bartlett alleges that Gardner directed Bartlett employee
Jason Graham to underservice the nursery, leading to a large scale
outbreak of disease and insects on its trees. In addition, Elhannon
alleges that Graham, at Gardner’s request, applied chemicals at
Elhannon which were illegal under New York law in order to attempt to
control an incipient outbreak. Graham was allegedly terminated after
he refused to continue applying illegal chemicals, ostensibly because
he would not support Graham’s ineffective spraying program at
Elhannon. Elhannon alleges that Bartlett had no intention of ever
spraying the entire nursery or of fully following through on the
misrepresentations it made to induce Elhannon to enter into the
contract. It also asserts that Bartlett falsified its records to give
the impression that it was performing more work at Elhannon than it
actually did, and that it improperly billed Elhannon for work done for
others. As a consequence of these failures, Elhannon faced a massive
2

pest problem, and has had to destroy trees valued at several million
dollars and to implement its own pest management program. Elhannon
brings claims for breach of contract, negligence, negligent
misrepresentation, fraud and intentional misrepresentation, fraud in
the performance, and violations of New York’s General Business Law
concerning consumer fraud.
Background on Discovery Requests
(a)

Outstanding document production
Elhannon filed a Motion to Compel on February 15, 2016 seeking a

more thorough production of the following categories of documents,
which it asserts are responsive to outstanding discovery requests:
(1)
Complete information on the Elhannon account from
Bartlett’s Electronic Landscape Manager (“ELM”) program,
including printouts of all screens;
(2)
Internal correspondence and emails pertaining to Elhannon;
(3)
Internal analysis documents pertaining to Elhannon,
including financial documents, estimates, and calculations of
costs and profitability;
(4)
Certain compensation and personnel file materials for the
two key Bartlett employees (Graham and Gardner) on the Elhannon
contracts; and
(5)
Documents from Bartlett’s other electronic systems (e.g.,
the NBS system).
These categories are also the subject of the discussion at issue
here. Once again, the parties vigorously dispute whether the Defendant
has already produced all relevant discovery pertaining to each
category.
(1)

Information from the ELM system
Elhannon first asserts that two depositions of Bartlett employees

–namely, Mr. Gardner and Mr. Andry –demonstrate that Bartlett failed
to produce all screenshots from its ELM system concerning the
company’s relationship with Elhannon. In particular, in Mr. Andry’s
3

deposition, the Plaintiffs were able to view the ELM program “in real
time with the Elhannon account loaded,” and were able to discern that
“many more information screens existed (and could easily and quickly
be printed out) than Bartlett had previously argued,” including “a
wealth of information related to Bartlett’s proposals and work
orders.” ECF 95, p. 4-5. According to Elhannon, the information
included in the system, evidenced during Mr. Andry’s deposition, was
“not included on any other documents produced to date by Bartlett.”
Id. at p. 6. This evidence, Elhannon asserts, contradicts Mr.
Gardner’s prior representation to the Court that all information and
screenshots from the ELM system had been produced. In addition, Mr.
Gardner later admitted in his deposition that he did not search for
these documents, but rather delegated the ELM search and screenshot
collection to an assistant who did not know how to use the system.
In its opposition, Defendant asserts that it was under no
obligation to produce any additional screenshots of the ELM system.
First, Bartlett argues that Plaintiffs did not request, and Bartlett
did not purport to produce, “all screenshots.” Rather, Elhannon
requested all documents related to the relationship between the
parties, and Bartlett only produced the screenshots with static
screens rather than ones with editable input fields. It also asserts
that the information that Plaintiffs request in their motion –i.e.
additional screenshots –would be duplicative of information already
produced, because that information “was used to generate documents
that were already produced.” Moreover, Bartlett argues that it

4

satisfied its production obligations by permitting Plaintiffs to
inspect the ELM system in person.
In reply, Elhannon contends that it did request every single ELM
screenshot, pointing the Court to Document Request numbers 5, 18, 39
and 42 and a letter dated December 22, 2015 which specifically asks
for “a complete printout of the entire file, including all screens.”
ECF 103, p. 2. It further asserts that the distinction between static
and editable screens in the ELM system is inapposite, since both types
of screens could demonstrably be printed out and produced. More
importantly, it asserts that “the Andry deposition confirmed that
there is information in the ELM that does not appear in any documents
generated from the system.” Id. at 4. It argues that the screenshots
are not merely another “form” of those documents produced by
information in the system, because “each screenshot shows a different
aspect of the Elhannon account and/or different information.” Id. at
3. Finally, Elhannon contends that its ability to inspect the ELM
system during Mr. Andry’s deposition did not rectify Bartlett’s
failure to produce documents.
(2)

Email Production
In addition, Elhannon asserts that Bartlett previously

misrepresented to the Court that it had produced “every email,
company-wide, pertaining to the Plaintiffs in any way,” when in
reality its email searches were “haphazard, overly narrow, devoid of
proper guidance by counsel, and unreliable to say the least.” ECF 95,
p. 6, 9-10. For example, Elhannon points to the deposition testimony
of Paul Fletcher, the Assistant Manager and later Manager of
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Bartlett’s New England Division, and of Mr. Gardner, both of whom
stated that they were not provided with search terms by counsel for
their email searches, and neither of whom produced a substantial
number of emails. Similarly, Elhannon alleges that the search terms
used by Ms. Horton, the office administrator in Bartlett’s Manchester,
VT office, were too limited, and did not result in the production of
the emails from Gardner to Elhannon that she testified about. Another
Bartlett employee, Ms. Lindsay, made inconsistent statements about
whether she had conducted email searches at all. Finally, Mr. Andry
stated that he did not search for emails using Elhannon’s Bartlett ID
number or the pertinent work order numbers, which Bartlett witnesses
suggested would be useful to identifying relevant documents.
In response, Bartlett acknowledged that it “recently recovered a
number of emails previously not produced due to a gap in the
technology used to perform its earlier email searches.” ECF 101, p. 8.
It states that the glitch was discovered on or about December 13,
2016, for reasons unrelated to Elhannon’s discovery motions. Rather,
“the discrepancy was the result of a limitation with the data storage
system . . . that it began using in 2013,” which did not reach
archived emails in conducting a search of the database. Id. at 8-9. As
a result, Bartlett had to directly access the computers of individual
employees and conduct searches using remote access. Moreover, Bartlett
argues that (1) the recently produced emails support its litigation
position; and (2) Elhannon was also under an obligation to produce
these emails, but failed to do so.

6

In reply, Elhannon asserts that the emails in fact support its
position, and that the technological deficiencies Bartlett raises
should have been evident to the Defendant much sooner. It further
objects to the ostensibly limited search terms Bartlett employed to
conduct email searches, even after the technological deficiencies were
discovered. It argues that several Elhannon-specific terms and email
addresses should have been used to conduct the search, along with the
Elhannon work order and invoice numbers.
(3)

Documents relating to cost and profitability
In its renewed motion, Elhannon also argues that, contrary to

Bartlett’s prior assertion, Bartlett witness’ deposition testimony
demonstrates that information on the profitability of Bartlett’s
contract with Elhannon exists. In particular, Mr. Gardner testified
that a particular client’s profitability is determined using divisionlevel price sheets, which are distributed to Bartlett’s arborist
representatives. In addition, Ms. Lindsay and Mr. Fletcher testified
that Bartlett produced information on the financial performance of
Bartlett’s local offices periodically, and that they kept records that
would permit them to do so, including the daily timesheets of its
spray technicians in local offices. According to Elhannon, these
materials have not been produced.
Bartlett responds that “the documents and cost analysis Elhannon
now references in its discussion are not specific to the Elhannon
account, and therefore [sic] not sought by these requests.” ECF 101,
p. 13. The local office financial reports and timesheets, for example,

7

were not account-specific, and “nothing in the deposition testimony
shows that account-specific profitability analysis exists.” Id.
In reply, Elhannon argues that it “learned that Bartlett indeed
does have analyses and documents that, while not necessarily specific
to Elhannon, are of the type from which Elhannon-related cost and
profitability information can be derived.” ECF 103, p. 8. For example,
Bartlett’s price sheets are relevant and responsive to Elhannon’s
discovery requests, but have not been produced. Similarly, timesheets,
even when not exclusive to Elhannon, can be used to verify information
contained in Bartlett’s work orders. Finally, Fletcher’s testimony
that commissions are paid based on profitability suggests that
account-specific calculations must exist, but also have not been
produced.
(4)

Personnel files
Elhannon further argues that Bartlett failed to produce a

complete set of Mr. Graham’s and Mr. Gardner’s personnel files. While
Bartlett employees purportedly searched the company’s IDOC system,
where some personnel records are kept, along with the paper files held
by the Human Resources office, Bartlett failed to search a second
system containing employee performance assessments that Ms. Lindsay
testified about. Moreover, Bartlett failed to produce Mr. Graham’s
timesheets, despite several witness’ testimony that such timesheets
exist.
Bartlett responds that Ms. Lindsay did not testify about a second
system for employee performance assessments, but rather stated that
the company developed a new program, called the Employee Assessment
8

and Performance Review Application, which was “rolled out” beginning
in mid-December of 2013. Since the parties’ relationship ended in the
summer of 2013, the assessments in this program would not be
temporally relevant to any of Elhannon’s claims or defenses. In reply,
Elhannon contends that “although Bartlett’s work at Elhannon ended in
2013, . . . there was continued back-and-forth, and a key meeting[,]
in 2014.” ECF 103, p. 9. It asserts that Bartlett agreed to provide
personnel information up to 2014, and therefore argues that any
records covering up to the end of 2014 should be produced.
(5)

Other Bartlett Electronic Systems
Last, Elhannon argues that Mr. Gardner and Ms. Lindsay’s searches

of electronic files outside of Bartlett’s email system were deficient,
because Mr. Gardner did not precisely state what electronic systems he
searched, while Ms. Lindsay only searched the IDOC system for
personnel records. However, witness’ deposition testimony suggests
that Bartlett has three corporate databases concerning financial and
accounting information, and an additional system (known as the NBS
system) that serves as “the main point of entry for just about any
data the [local] office needs to enter or look up.” ECF 95, p. 14. Ms.
Lindsay did not search NBS, and Mr. Gardner stated that he did not
know why only two documents from the NBS system were produced.
Moreover, Elhannon argues that the search of the IDOC system failed to
turn up relevant company policy documents and manuals.
Bartlett responds that the NBS system is synced with the more
comprehensive ELM system, and that both systems share a single
database. Therefore, although duplicates from the NBS system were not
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produced, “all requested, discoverable materials from the Bartlett
system were produced to Plaintiffs in this matter.” Moreover, Bartlett
asserts that the policy documents Elhannon seeks were not covered by
prior document requests, and that “the appropriate course of action
would have been to follow up with a supplemental discovery request for
those policies.” In reply, Elhannon rejects that argument, pointing to
Document Request numbers 29, 30, and 31. It also argues that Mr.
Andry’s deposition testimony provides that the NBS system is more
comprehensive than the ELM system, and that in any case, even
Bartlett’s production from the ELM system was allegedly deficient. 1
(b)

Meet and confer efforts
In its cross-motion for sanctions, Bartlett argues that Elhannon

failed to meet and confer prior to filing the instant motion to
compel, in violation of Fed. R. Civ. P. 37(a)(1) and Local Rules
7(a)(7) and 26(d)(1). Rather, “all meet-and-confer efforts referenced
in Plaintiffs’ Motion occurred prior to Plaintiffs’ February 2016
motion.” ECF 100, p. 3. Moreover, Plaintiffs allegedly failed to
compile a list of purported deficiencies in Bartlett’s discovery
production, as they promised to do after the parties’ mediation.
Elhannon argues that there is nothing new in its motion to compel, and
that “the parties have been going back and forth on the issue of
Bartlett’s deficient discovery production since April 15, 2015.” ECF
104, p. 2. However, “Bartlett has repeatedly and consistently taken
1
The parties also dispute whether Mr. Gardner correctly stated that Elhannon
documents were lost in a flood. There is no dispute that a flood occurred,
and neither party asserts that the flood is a reason why some documents could
not be produced. Therefore, the dispute is not relevant to Bartlett’s
compliance with the discovery requests at issue here, but rather provides
additional fodder for the parties’ mutual finger-pointing.

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the position that it has produced every single available document, and
that nothing further exists.” Id. As such, Elhannon argues that
further meet-and-confer efforts would have been futile. Furthermore,
it sustains that even if the Court were to decide that further meetand-confer is necessary before it can address the renewed Motion to
Compel, the circumstances do not justify the imposition of sanctions.
Bartlett replies that (1) it has never refused to confer in good
faith, and instead expected that Elhannon would produce a list of
discovery disputes leading to further dialogue after the parties’
mediation; (2) Elhannon should not be permitted to rely on its
speculation about what would have happened had it entered into such
dialogue in order to sustain that further meet-and-confer would have
been futile; and (3) some of Elhannon’s requests in its motion to
compel were never part of any discovery request. Bartlett further
argues that it could not have known of the technological limitation
that led to gaps in its email production, and that it sought to remedy
that oversight as quickly as possible. It then asserts that, “as a
showing of its good faith, should Plaintiffs decide that they need to
retake the depositions of Mr. Gardner and/or Mr. Fletcher to address
the content of the emails, Bartlett would agree to pay a reasonable
amount for attorneys’ fees (capped at a reasonable sum-certain in
advance) and the cost of deposition, in recognition that its late
production of emails was attributable to a gap in its technology.” ECF
106, p. 8.
Discussion

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a.

Whether the Court should order the production of additional

discovery materials
(i)

Whether the documents at issue were within the scope of discovery

requests
Federal Rule of Civil Procedure 26(b) permits a party to “obtain
discovery regarding any non-privileged matter that is relevant to any
party's claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b). Moreover, discovery rules “are to be accorded a
broad and liberal treatment to effectuate their purpose that civil
trials in the federal courts no longer need be carried on in the
dark.” Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170 (2d Cir.
2003).

Here, Bartlett asserts that three of the five categories of

documents sought by Elhannon –namely, the documents pertaining to cost
and profitability of the Elhannon contracts, the outstanding personnel
files from the end of 2013 and 2014, and the policy documents included
in Bartlett’s additional electronic databases –fall outside of the
scope of Elhannon’s discovery requests. After reviewing Elhannon’s
demands, the Court finds that each of these categories are both
relevant and fall within the scope of Elhannon’s requests, but
requires the parties to engage in further meet-and-confer efforts to
reach a common understanding of key factual issues.
First, in relation to cost and profitability documentation, the
parties agree that document request number 20 is germane to the
dispute. That request seeks “documents concerning the anticipated or
expected costs or profits, or any analysis of the anticipated costs or
profits, to be borne by or realized from the proposal to Elhannon; the
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program offered to or intended for Elhannon; and/or the Elhannon
contracts.” In addition, the parties point to other document requests
that may be relevant. 2 However, Bartlett argues that timesheets and
office financial reports are not “account specific,” while Elhannon
asserts that timesheets and company “price sheets” are “of the type
from which Elhannon-related cost and profitability information can be
derived.” ECF 103, p. 8.
The Court finds that at least some of this information falls
within the scope of the document requests. Mr. Gardner testified that
he would rely on price sheets to conduct a profitability analysis at
the time of contract formation. As such, even price sheets that are
not specific to Elhannon, if combined with additional testimony, are
relevant to the profitability of the Elhannon contract. Moreover, at
least on days when Bartlett claims to have serviced Elhannon for an
entire day, the timesheet entries of the Bartlett employees working at
the site would be specific to Elhannon. As such, these documents would
“concern” the anticipated costs or profits of the Elhannon contracts,
and thus fall within the scope of the document requests.
2

Lastly,

In particular, Document Request 18 seeks “All internal documents within
Bartlett . . . relating to: a) the decision to make a proposal to Elhannon;
b) the proposal to Elhannon; c) how the proposal was formed; d) the
contracts; e) the performance of the contracts.” Document Request 19 seeks
“all documents or records reflecting, regarding, concerning, or in any way
referencing . . . the amount of spraying to be done at Elhannon.” Document
Request 21 seeks “all documents showing the profits realized by Bartlett on
the services performed for Elhannon.” Document Request 23 seeks “All
documents . . . concerning the timing of any treatments/sprayings to be
conducted at Elhannon, and when those treatments/sprayings would be
conducted, and why.” Document Request 42 seeks “all documents (hard copy or
electronic) created in tracking the activities and costs associated with the
Elhannon contracts.” Document Request 46 seeks “all documents showing
Bartlett’s actual costs associated with performing the Elhannon contract(s)
(both in man-hours and chemicals); what revenue Bartlett generated; what
profit Bartlett realized; and what Bartlett’s profit margins are on
inspections and treatments.”

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since the Court does not have a copy of the office financial reports
in dispute, it cannot determine at this time whether information
specific to Elhannon could be derived from these reports, even if the
reports cover other business transactions as well. Accordingly, the
Court hereby orders parties to engage in further meet-and-confer
efforts to reach a common understanding of whether any Elhannon
information is broken down in these reports, or is instead
indistinguishable from a more general financial analysis for the
office. To the extent that any information specific to Elhannon can be
derived from the documents, the Court hereby orders that Bartlett
produce the documents, even if they also contain financial analysis
that is not specific to Elhannon.
Next, the parties dispute whether Bartlett’s personnel records
from the end of 2013 and 2014, which were included in a new employee
assessment database, fall within the scope of Elhannon’s requests for
production. Document Request 17 seeks “[t]he complete employment or
personnel file, excluding medical or personal information, of all
Bartlett employees or representatives who ever visited Elhannon,
including, but not limited to . . . performance reviews or
appraisals.” ECF 103-1, p. 2. Therefore, to the extent that the
performance reviews date to a time period when Bartlett employees
might still be engaged with Elhannon in some way, or if they were
produced at a time after Elhannon and Bartlett’s relationship ended
but assess the employee’s performance during the time when the
relationship was ongoing, they would be relevant and fall within the
scope of Elhannon’s discovery request.
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In its Amended Complaint, Elhannon alleges that Bartlett’s
spraying of Elhannon’s property occurred between 2007 and 2013. It
further alleges that Gardner came to Elhannon in September of 2013 and
applied chemicals, and that Graham was fired by Gardner in February of
2014, purportedly because he would not support Gardner’s spraying
program at Elhannon and argued with him about it. Furthermore, the
pleadings assert that Bartlett representatives, including Gardner, met
with Elhannon representatives in April of 2014. Therefore, any records
concerning Gardner and Graham related to their work in the final
months of 2013 and the early months of 2014 would be relevant and
within the scope of Elhannon’s document request. In light of
Bartlett’s admission that it failed to search the employee assessment
database that was implemented in late 2013, the Court orders the
Defendant to produce documents responsive to Document Request number
17 which are relevant to the 2013-2014 time period.
Finally, Bartlett asserts that the policy statements included in
its additional electronic databases are not responsive to any document
requests, because Elhannon’s requests that might be pertinent to this
issue were overly broad and Elhannon should have followed up with
narrowed requests for policy documents. However, Elhannon clearly
requested the multiple, specific categories of policy documents at
issue in its motion. 3 While some of these, such as Document Request 4,

3

As both parties acknowledge, Document Requests 29, 30 and 31 refer to such
policy documents. Document Request 29 seeks “any and all manuals or
guidebooks from 2007-2014 instructing divisions or branch offices how to
operate and/or conduct their activities.” Document Request 30 seeks “any and
all manuals, guidebooks, and/or instructions regarding how to create, plan,
implement, inspect, conduct and monitor an IPM program, and how to conduct
inspections, prior to any deployment of chemicals.” Document Request 31 seeks

15

are not tailored to the facts relevant to this case and thus are
overly broad, other requests clearly relate to the conduct at issue,
including the company’s policies in developing an integrated pest
management program. Accordingly, Bartlett should have instructed its
employees to search relevant systems for such policies, and the Court
orders Bartlett to do so to the extent that, as its employees stated
in deposition testimony, they have not done so already.
(ii)

Whether Bartlett must produce additional documents from

electronic databases
In addition, the parties disagree about whether Bartlett produced
sufficient documents from the ELM database, the NBS system and other
electronic systems. In connection with these categories of documents,
the parties dispute whether (1) the Defendant must produce separate
copies of documents contained in different formats or systems if they
are coextensive (e.g. if a screenshot from ELM contains the same
information as a document generated by the ELM system, or if a
document from the NBS system produces information from the ELM
system), (2) whether such systems or copies are coextensive at all,
and (3) whether permitting Elhannon to inspect an electronic system
would suffice to meet Bartlett’s discovery obligations.
First, if the NBS and ELM systems are coextensive, and if
Defendant had satisfied its obligations to produce documents from the
“any and all manuals, guidebooks, and/or instructions regarding how to
create, plan, implement, inspect, conduct and monitor a non-IPM contract or
program prior to any deployment of chemicals.” In addition, Document Requests
2 and 3 request “manuals, memos, plans programs and/or emails” that discuss
how to develop or create a proposal for a potential customer and how to
develop or create a tree care program for a potential customer, respectively.
Document Request 4 seeks “all instruction or guidance manuals in effect from
January 1, 2007 to the present.”

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ELM system, it would not be under any further obligation to provide
identical, duplicate forms of the same information. Fed. R. Civ. P.
34(b)(2)(E)(ii) provides that “if a request does not specify a form
for producing electronically stored information [(“ESI”)], a party
must produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms”, while subsection
(iii) explains that “a party need not produce the same electronically
stored information in more than one form”. Fed. R. Civ. P.
34(b)(2)(E)(iii). Therefore, if ESI data is produced in one form, then
the responding party need not re-produce it in the Plaintiff’s
preferred form. See, e.g., A & R Body Specialty & Collision Works,
Inc. v. Progressive Cas. Ins. Co., No. 3:07CV929 WWE, 2014 WL 4437684,
at *4 (D. Conn. Sept. 9, 2014) (“Defendants have already produced the
data sought. . . Accordingly, the Court will not compel defendants to
reproduce the data in plaintiffs' preferred format, and the Court
denies plaintiffs' request for a merged dataset.”).
Similarly, if the documents produced by the Defendant essentially
replicated the information contained in the ELM system, the Court
would have discretion to limit the production of ELM data. In
particular, the Court may refuse to require the production of ESI in
any form where the information is available from other sources. See
Star Direct Telecom, Inc. v. Glob. Crossing Bandwidth, Inc., 272
F.R.D. 350, 359 (W.D.N.Y. 2011) (“a court may decline to order
production of relevant electronically stored information from
inaccessible sources if that information is available from accessible
sources”). In order to justify such a ruling, however, Defendant would
17

need to make a showing that the ESI at issue is not “reasonably
accessible because of undue burden or cost.” Id. at 358. Defendant has
not done so in this case. Moreover, Elhannon points to evidence
suggesting that the substance of the information that would be derived
from the ELM system is not, in fact, available from the documents
already produced, and that the NBS and ELM systems do not simply
provide two forms of the same ESI.
Specifically, despite Bartlett’s representation to the contrary,
deposition testimony suggests that the NBS and ELM systems are not coextensive, and that the NBS system may contain documents not included
in the ELM system. For example, Mr. Andry testified that the NBS
system receives information from the ELM system and the payroll
system, and that “all the databases just sort of exchange information
in real time or daily.” ECF 103-2, p. 4. That is, the ELM and NBS
system “share one database.” Id. at 6. However, he also testified that
the NBS system is more comprehensive in “that it encompasses a lot
more than just” what the ELM system includes. Id. at 4. Thus, Andry’s
testimony suggests that while the ELM system’s information is synced
with the NBS system, the NBS system contains additional information
that the ELM system does not contain.
In addition, Elhannon set forth evidence suggesting that “there
is information in the ELM that does not appear in any documents
generated from the system.” In particular, it points to information
related to the profitability of the Elhannon contract (including the
historical dollar return per hour on the account, the work rates,
dollars earned in relation to tasks performed and proposal histories),
18

which it claims became apparent during Andry’s deposition, but was not
produced to it earlier. Bartlett does not claim that these specific
pieces of information were produced to Elhannon, but instead summarily
argues that it “should not be required to produce the same information
already produced in less reliable form.” ECF 101, p. 6. In light of
the lack of specificity in Bartlett’s response, and Elhannon’s
identification of various responsive, relevant pieces of information
that have not been produced and are available through the ELM system,
the Court finds that the existing document production is not
coextensive with the outstanding ELM screenshots.

Accordingly, the

Court hereby orders Bartlett to produce relevant, responsive data from
both the ELM and the NBS systems, to the extent that any relevant
documents in one system are not available in the other system.
The remaining question, however, is whether Bartlett has
partially satisfied that obligation by permitting Elhannon to inspect
the ELM system.

As noted above, Rule 34 provides that if, as in this

case, a request does not specify a form for producing ESI, “a party
must produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms.” Fed. R. Civ. P.
34(b)(2)(E)(ii). In addition, in 2015, the Federal Rules of Civil
Procedure were amended “to reflect the common practice of producing
copies of documents or electronically stored information rather than
simply permitting inspection.” Fed. R. Civ. P. 34, Advisory
Committee’s Note (2015).

Fed. R. Civ. P. 34(b)(2)(B) now provides

that “the response must either state that inspection and related
activities will be permitted as requested or state with specificity
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the grounds for objecting to the request, including the reasons. The
responding party may state that it will produce copies of documents or
of electronically stored information instead of permitting
inspection.” Thus, under the terms of the rules, either physical
production of a document in the form in which it is ordinarily
maintained or inspection of electronically stored information would
suffice to satisfy a party’s discovery obligations, so long as the
party indicates the manner in which it purports to satisfy its
obligations in its response.
In this case, however, Bartlett does not maintain that it
responded to Elhannon’s relevant request for production by permitting
the inspection of records. Rather, it appears from the parties’
filings that the inspection was incidental to Elhannon’s deposition of
Andry, and that Bartlett purported to comply with requests for
production by producing some physical print-outs of the ELM system and
some documents ostensibly generated by using information from the ELM
system. Thus, it appears that the Defendant failed to state that it
would permit an inspection in lieu of document production, as required
by Rule 34. Moreover, unlike the Eastern District of New York case
cited by Bartlett, in which the Court held that a party had comported
“with both the letter and the spirit of Rule 34” by producing
documents on CD’s and subsequently permitting inspection in order to
permit the opposing party to discern their relevance, Elhannon has
suggested that Bartlett’s document production was itself incomplete.
See Sky Med. Supply Inc. v. SCS Support Claim Servs., Inc., No.
CV126383JFBAKT, 2016 WL 4703656, at *5 (E.D.N.Y. Sept. 7, 2016). In
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addition, Bartlett is not offering to permit Elhannon to inspect its
ELM systems at a given time on its own, independently of Andry’s
deposition. Therefore, the Court finds that Bartlett did not satisfy
its obligations merely by allowing Elhannon to review the ELM system
contemporaneously with a witness’ deposition, without expressly
stating that such an inspection constituted its response to Elhannon’s
requests for production.
(iii) Sufficiency of email search terms
The last outstanding dispute between the parties concerns
Bartlett’s email production. Essentially, Elhannon does not point to
specific categories of emails that are missing, but instead contends
that Bartlett employees should have used a different set of search
terms to identify relevant documents. It does not, however, point to
any case law to support this proposition. The Rules themselves do not
provide a mechanism for a party to supply the search terms to be used
by an opposing party in responding to document requests. However,
numerous courts have warned that the process of producing ESI through
keyword searches may be complicated, and that cooperation among
counsel is central to ensuring compliance with discovery obligations.
See William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co.,
256 F.R.D. 134, 136 (S.D.N.Y. 2009) (“Electronic discovery requires
cooperation between opposing counsel and transparency in all aspects
of preservation and production of ESI. Moreover, where counsel are
using keyword searches for retrieval of ESI, they at a minimum must
carefully craft the appropriate keywords, with input from the ESI's
custodians as to the words and abbreviations they use, and the
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proposed methodology must be quality control tested to assure accuracy
in retrieval and elimination of “false positives.”). Thus, when
parties disagree on appropriate keyword search terms, courts may
require parties to meet and confer in order to reach an agreement
regarding the search terms that will be employed to produce a
meaningful sample. Pippins v. KPMG LLP, No. 11 CIV. 0377 CM JLC, 2011
WL 4701849, at *9 (S.D.N.Y. Oct. 7, 2011) (citing Zubulake v. UBS
Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“When the opposing
party propounds its document requests, the parties could negotiate a
list of search terms to be used in identifying responsive documents”).
Given the parties’ failure to engage in a comprehensive meet and
confer or to reach agreement on the scope of email search terms, the
Court will require the parties to do so now, rather than grant
Elhannon’s motion on this ground. If necessary, the parties may
request the Court to approve a list of appropriate email search terms
after their meet-and-confer.
b.

Whether the Court should grant sanctions to either party

(i)

Whether Elhannon failed to satisfy its meet-and-confer obligation
Federal Rule of Civil Procedure 37(a)(1) provides that a motion

to compel discovery “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). In this case,
Elhannon purportedly “renews” its prior motion, which this Court
denied, on the basis of evidence discovered during the depositions of
relevant witnesses. In its motion, Elhannon justifies the categories
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of documents it previously sought by pointing to evidence that
certain, specific types of information had not been produced.

The

parties dispute whether, in such circumstances, their prior meet-andconfer efforts suffice to meet Elhannon’s obligations under Rule 37,
or whether Elhannon should have reengaged with Bartlett prior to
filing the motion.
Courts have applied the meet-and-confer requirement to a party’s
renewed motion to compel. See, e.g., Inhalation Plastics, Inc. v.
Medex Cardio-Pulmonary, Inc., No. CIVA2:07-CV-116, 2010 WL 1445171, at
*3 (S.D. Ohio Apr. 12, 2010) (“Defendant's counsel invited further
discussion of remaining issues relating to Defendant's responses to
Plaintiff's interrogatories and production requests. Rather than
filing a motion to compel, Plaintiff's counsel should have accepted
that invitation. For this reason, the Court denies the Renewed Motion
to Compel.”). However, contrary to Bartlett’s suggestion, district
courts maintain discretion to waive the meet-and-confer requirement.
See Care Envtl. Corp. v. M2 Techs. Inc., No. CV-05-1600 (CPS), 2006 WL
1517742, at *3 (E.D.N.Y. May 30, 2006) (“Courts have excused a failure
to meet and confer where: (1) under the circumstances, the parties do
not have time to attempt to reach an agreement; or (2) an attempt to
compromise would have been clearly futile.”) (citing Yoon v. Celebrity
Cruises, Inc., 1999 WL 135222, *6 (S .D.N.Y.1999)).

In particular,

courts look to the history of negotiations between the parties to
determine whether further meet-and-confer efforts would be unfruitful.
See, e.g., Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96

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CIV. 7590(DAB)JCF, 1998 WL 67672, at *3 (S.D.N.Y. Feb. 18, 1998)
(collecting cases).
In this case, the parties’ filings indicate that counsel have
approached each other with significant animosity, and that substantial
challenges exist to narrowing discovery disputes. However, in light of
Bartlett’s representation that Elhannon promised to provide a list of
outstanding discovery disputes after the parties’ mediation but failed
to do so, the parties’ differences in this case cannot be solely
attributed to Bartlett’s uncooperative attitude. Thus, a meet-andconfer effort would not necessarily have been futile. Accordingly, the
Court finds that the parties must fulfill their meet-and-confer
obligation on certain discovery disputes as outlined above,
particularly in order to resolve the appropriate scope of email
searches and additional electronic searches in Bartlett’s other
databases. Nevertheless, the Court does not find that Elhannon’s
failure to meet and confer prior to filing the instant motion warrants
the imposition of sanctions.
(ii)

Whether sanctions should be imposed on either party for

failing to satisfy their discovery obligations
“Whether exercising its inherent power, or acting pursuant to
Rule 37 [of the Federal Rules of Civil Procedure], a district court
has wide discretion in sanctioning a party for discovery abuses.”
Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999).
The Court is not persuaded that either party has provided sufficient
reasons to justify sanctions against the other for failing to produce

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documents, and hereby denies both parties’ cross-motions for
sanctions.
Conclusion
For the foregoing reasons, the Court grants Elhannon’s renewed
motion to compel in part and denies it in part. ECF 95. Moreover, in
light of indicators that Bartlett did not fail to comply with its
discovery obligations in bad faith, the Court denies the Plaintiffs’
motion for sanctions. Id. In addition, the Court declines to impose
sanctions on Elhannon for failing to meet and confer prior to filing
its renewed motion, but requires the parties to engage in further
meet-and-confer efforts to narrow their differences on the appropriate
scope of discovery. Thus, Defendant’s cross-motion for sanctions and
motion for leave to file a supplemental brief on this issue are hereby
denied. ECF 100; ECF 109.
Dated at Burlington, in the District of Vermont, this 18th day of
April, 2017.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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