In Leprino Foods Co. v. Avani Outpatient Surgical Ctr.., Inc., No. 2:22-cv-07434-DSF-JC (C.D. Cal. Sept. 30, 2024), California Magistrate Judge Jacqueline Chooljian granted in part and denied in part Plaintiffs Motion to Compel, ruling (among other things) that Defendant Bedford must produce a destruction/unavailable log, as specified in Plaintiffs’ Document Requests.
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Case Discussion and Judge’s Ruling
This case involved claims for common law fraud, restitution under ERISA § 502(a)(3), violation of the Unfair Competition Law §§ 17200 et seq. (UCL), and intentional interference with contractual relations against 18 defendants, including the Center for Surgery at Bedford, LLC (“Bedford”). On February 28, 2023, the parties – including Bedford – submitted a Stipulated E-Discovery Specification, Pursuant to Fed. R. Civ. P. 26(f), which the then-assigned Magistrate Judge issued on March 1, 2023.
On March 6, 2023, Plaintiffs propounded on Bedford Document Requests, which called for Bedford to produce documents in a specified format consistent with the Stipulated Protective Order and the E-Discovery Stipulation and to provide specified information regarding responsive documents that were destroyed, lost or otherwise unavailable (“destruction/unavailable log). Over several months, the parties corresponded on the status of Bedford’s response to the production requests several times, during which Bedford made two productions – the first of 793 pages and the second of 6,048 pages.
On January 19, 2024, Plaintiffs’ counsel emailed Bedford’s counsel another meet and confer letter, referencing Bedford’s failure to respond to the prior meet and confer letters, assertedly incomplete and overly redacted document production and improper objections, and failure to produce supplemental responses, privilege/redaction and destruction/unavailable logs, and requesting dates and times to meet and confer between January 19, 2024 and January 29, 2024. After Bedford’s counsel failed to respond to Plaintiffs’ satisfaction, Plaintiffs’ counsel filed the Motion to Compel on February 9, 2024.
In their motion, Plaintiffs asserted (among other things) that Bedford failed to produce a “destruction/unavailable log” as required by the instructions in the Document Requests and argued that Bedford should be required to do so.
Judge Chooljian, noting that “Bedford does not directly address this argument but does essentially represent that it has never had documents responsive to a couple of Document Requests”, stated: “The Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce a destruction/unavailable log consistent with the instructions in the Document Requests and Defendant Bedford is ordered to do so.”
After also granting Plaintiffs’ motion as to several specific document requests, Judge Chooljian considered Plaintiffs’ request for sanctions, stating: “In light of the foregoing, the Court deems it appropriate to grant Plaintiffs’ Motion to Compel in part to the extent it seeks an order compelling Bedford/its counsel jointly and severally to pay a portion of the fees/costs incurred in connection with the filing of the Motion to Compel.” So, she ordered that “Bedford and its counsel, jointly and severally, shall pay monetary sanctions in the amount of $5,563.50 to Plaintiffs.”
Hat tip to Michael Berman for the heads up on this case!
So, what do you think? Have you ever had to produce a destruction/unavailable log in litigation? I haven’t. Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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