## Facts

- Adults with severe developmental disabilities and an advocacy organization sued a county community mental health program and the county over reductions in community living support (CLS) services allegedly tied to a modified budgeting methodology.
- After remand for discovery, the parties entered ESI discovery focused on budgeting and reimbursement decisions affecting CLS services.
- Plaintiffs served multiple requests for production, including an RFP seeking ESI from identified custodians about CLS budgeting and reimbursement.
- The parties agreed to keyword test searches of the email system; four of five test searches returned unexpectedly low “hit” counts.
- Plaintiffs requested a proportional validation step: production of 80 randomly selected emails (20 from each failed test) to confirm whether the searches were missing responsive material.
- Defendants refused to produce the sample emails, declined additional testing, and did not commit to a prompt production plan, asserting limited staffing and resources and reliance on a single employee with email-system access.
- The court found the main impediment was defense counsel’s inadequate ESI competence and lack of cooperation, including failure to meaningfully assess custodians and ESI locations and resistance to basic ESI protocol concepts.

## Issues

1. Whether defendants could refuse further ESI testing and limited validation production based on claimed staffing and resource constraints.
2. Whether defendants’ ESI discovery conduct warranted an order compelling production and sanctions under Federal Rule of Civil Procedure 37.

## Decision

- The court rejected defendants’ resource and manpower excuses as insufficient to avoid reasonable, proportional ESI discovery obligations.
- The court held that plaintiffs’ proposed sampling/validation of 80 emails was a proportional method to evaluate search adequacy.
- The court ordered defendants to comply with ESI discovery, including reasonable testing measures and production needed to confirm the effectiveness of search terms.
- The court granted plaintiffs’ request for sanctions under Rule 37 based on defendants’ failure to cooperate and to comply with discovery obligations.

## Legal Principles

- Under Rules 26(b)(1) and 34, discovery must be proportional and requests must be reasonably particular, but responding parties must still conduct a good-faith search reasonably designed to find responsive ESI.
- Sampling and testing can be appropriate, proportional tools to assess whether keyword searches are capturing responsive ESI.
- Claimed staffing or budget limitations do not, by themselves, excuse failure to perform competent, cooperative ESI discovery, particularly where the responding party has access to institutional IT resources.
- Counsel must be sufficiently competent to identify, preserve, collect, review, and produce ESI, or must associate with someone who is; failure to do so may support Rule 37 sanctions.
- Rule 37 sanctions may be imposed when parties obstruct ESI discovery, refuse reasonable validation steps, and fail to cooperate in developing and implementing workable search protocols.

## Conclusion

The court compelled ESI production and imposed Rule 37 sanctions after finding that defendants’ refusal to test and validate keyword searches and their lack of competent, cooperative ESI practices violated proportional discovery obligations; generalized resource constraints did not justify noncompliance.


Waskul v. Washtenaw Cnty. Cmty. Mental Health, 569 F. Supp. 3d 626 (E.D. Mich. 2021)