A federal judge in a contract case has excused compliance with a discovery agreement that would have required the plaintiff to produce an estimated 65 million documents, finding it would cost too much to screen them for privilege.
"This case highlights the dangers of carelessness and inattention in e-discovery," District Judge Dickinson Debevoise wrote in a Dec. 9 ruling. "While Plaintiff should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence."
The materials at issue in I-Med Pharma, Inc. v. Biomatrix Inc., 03-cv-3677, were found on the computer system of I-Med Pharma, a Quebec medical supply manufacturer and distributor. It claims breach of contracts that gave it exclusive Canadian distribution rights for Biomatrix eye care products. After Biomatrix, of Ridgefield, combined with Genzyme of Cambridge, Mass., in 2000, the resulting company, Genzyme Biosurgery, allegedly began failing or refusing to provide I-Med the products.
The search of I-Med's computers was done pursuant to a May 17, 2010, stipulation that resolved discovery disputes between the parties. I-Med agreed to allow a forensic search of its computer network, servers, and related storage devices by a defense computer expert who would be required to sign a protective order.
The search would look for documents containing 58 specified keywords that included names of companies, products, and persons involved with the contracts as well as other terms like refund, FDA, credit, claim, complaint, and profit.
The search was not limited to active files or particular time periods and it included unallocated space, which holds deleted and temporary files. Part of the expert's job was to determine how and when the documents and files containing keywords were deleted or modified.
The expert was to summarize the findings for both sides. The documents and data recovered would go first to I-Med for review. Within 60 days of receiving the documents, I-Med was to designate what was confidential, create a privilege log and turn it the log over to Genzyme along with copies of everything else.
The expert gave I-Med the records in ZIP file format in September 2010, but after I-Med complained that it would require more than 10,000 hours just to open everything, the parties agreed on a more manageable format.
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