October 2013 Bonus Case Summaries: Nebraska: Court Refuses to Compel Production of ESI Without Specifications


American Home Assurance Co. v. Greater Omaha Packing Co., Inc., 2013 WL 4875997 (D. Neb. Sept. 11, 2013).   In this case, the plaintiffs made a motion to compel discovery of emails and other electronically stored information (ESI). ESI is defined under the federal rules of civil procedure as information created or utilized in digital form. The defendant, however, claimed it did not have the information the plaintiffs were seeking; the defendant did not have a centralized email server where the documents were stored, and the small search it conducted was of all of its available ESI. The court expounded that each party had a duty to produce information by conducting timely searches, but that the court would not compel production of information that did not exist. The court reasoned that if this ESI did exist, and had not yet been produced, it would compromise with the parties. The court ordered all ESI based on the then-current search terms to be produced, but would not compel further discovery due to the plaintiffs’ lack of specification. Thus, the court denied the plaintiffs’ motion to compel discovery.

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