IEA Constructors, LLC, and Infrastructure and Energy Alternatives, Inc. v. Westwood Professional Services, Inc.

Summary

The United States District Court for the Western District of Wisconsin addressed plaintiffs’ motion to compel discovery and defendant’s counsel’s motion for an excused absence. The court ordered defendant to supplement and verify its responses concerning electronically stored information, enforced the parties’ clawback agreement regarding an inadvertently produced privileged draft email, and granted the request for an excused absence subject to continued compliance with case deadlines. The parties were ordered to bear their own costs.

Holdings

1. The production substantially satisfied Rule 34(b)(E) because the materials were produced electronically in the form in which they were ordinarily maintained or in a reasonably usable form. Plaintiffs were not entitled to compel defendant to identify every responsive file by request or to provide substantive answers and admissions through requests for production.
2. Even if Rule 34 required the specific identification plaintiffs sought, the motion would be denied as untimely because it was filed after discovery closed and was not brought promptly.
3. Defendant was required to supplement its responses to Requests for Production Nos. 23-27, formalize its representation that responsive documents had been produced, and verify that representation under oath.
4. Defendant violated the parties' clawback agreement by neither returning or destroying the inadvertently produced draft email nor presenting its disagreement to the court within five days of plaintiffs' clawback notice. Plaintiffs were entitled to enforcement of the clawback provision.
5. The parties' agreed clawback protections were not conditioned on the producing party's taking reasonable steps to prevent disclosure, and plaintiffs' conduct did not waive those protections.
6. The motion for excused absence was granted, with the condition that defendant's other attorneys cover the lead counsel's absence and that defendant continue meeting existing and newly imposed deadlines.

Questions Presented

1. Whether defendant's production of electronically stored information and project files satisfied Federal Rule of Civil Procedure 34(b)(E) and whether plaintiffs were entitled to more specific identification of responsive documents.
2. Whether plaintiffs' motion to compel concerning Requests for Production Nos. 23-27 was untimely because it was filed after the close of discovery.
3. Whether the parties' clawback agreement required defendant to return or destroy the inadvertently produced draft email or timely present its privilege objection to the court.
4. Whether defendant's lead counsel should receive an excused absence subject to the requirement that defendant's trial team continue covering deadlines and obligations.

Disposition

other