ELIZABETH A. PRESTON DEAVERS, Chief Magistrate Judge.
This matter is before the Court for consideration of Re-Filed American Municipal Power, Inc.'s Motion to Compel (ECF No. 59), Defendant's Memorandum in Opposition to Plaintiff's Motion to Compel (ECF No. 62), American Municipal Power, Inc.'s Reply Memorandum (ECF No. 63), American Municipal Power, Inc.'s Supplemental Memorandum (ECF No. 76), and Defendant Voith's Amended Response to Plaintiff AMP's Supplement (D.E. 76) (ECF No. 80).
Plaintiff American Municipal Power, Inc. f/k/a American Municipal Power-Ohio, Inc. ("AMP") is a nonprofit that, among other things, serves as a wholesale power supplier for member municipal power systems. (Complaint, ECF No. 1, at ¶¶ 1, 6.) AMP purchases, generates, and distributes electrical power for AMP members (political subdivisions of various states) serving customers in several states, including Ohio, Kentucky, and West Virginia. (Id. at ¶ 6.) AMP contracted for four hydroelectric power plants to be designed and built at existing locks and dams along the Ohio River at the Cannelton Locks and Dam near Hawesville, Kentucky ("Cannelton"); the Smithland Locks and Dam near Smithland, Kentucky ("Smithland"); the Captain Anthony Meldahl Locks and Dam near Foster, Kentucky ("Meldahl"); and the Willow Island Locks and Dam near New Martinsville, West Virginia ("Willow Island") (collectively, the "Projects"). (Id. at ¶ 7.) The Projects are run-of-the-river hydroelectric generating facilities with an intake approach channel, a reinforced concrete powerhouse and a tailrace channel. (Id. at ¶ 8.) The Projects divert water from existing dams through horizontal bulb-type turbine and generating units to generate electrical power. (Id.)
AMP describes the machinery and one particular component on each of the eleven turbines (commonly referred to as a "discharge ring") as follows:
(ECF No. 59 at 3-4.)
AMP included the following representation of one of the discharge rings situated among other bulb turbine components:
(Id. at 4.)
AMP selected Voith to provide the major powerhouse equipment, including the hydraulic bulb-type turbines, governing systems and generators (the "Voith Equipment") associated with the Hydro Projects. (Id. at ¶ 13.) AMP and Voith executed four individual agreements, one relating to each of the Projects, for Design, Fabrication & Supply of Turbine and Generator Equipment (collectively, the "Contracts"). (Id. at ¶ 13; see also copies of contracts from each Hydro Projects, ECF Nos. 1-1, 1-2, 1-3, 1-4.) Each Contract requires Voith to, among other things, (a) design, fabricate and supply the unique and specialized Voith Equipment to the Projects; (b) provide project specifications and installation instructions relating to the Voith Equipment; (c) direct and oversee installation and field testing of the Voith Equipment by separate contractors; and, (d) ensure proper performance of the installation of the Voith Equipment by the contractors on the individual projects. (Complaint, ¶¶ 14-15; see ECF Nos. 1-1, 1-2, 1-3, 1-4.) The Contracts required Voith to, inter alia, perform pursuant to certain deadlines ("Milestones") and provided that Voith would be liable to AMP for liquidated damages if Voith failed to timely achieve the Milestones. (Complaint, ¶¶ 20-22; Articles 3.1, 3.2, 3.3 of ECF Nos. 1-1, 1-2, 1-3, 1-4.) The Contracts further provide that Voith would reimburse AMP for third-party claims for damages due to delays in the Projects caused by defects in Voith's work, not to exceed $23,000 a day for all claimants or, in total, 10% of the Contract price. (Complaint, ¶ 23; Article 3.5 of ECF Nos. 1-1, 1-2, 1-3, 1-4.)
The Contracts require Voith, under certain circumstances, to provide AMP with a "root cause analysis," including design and performance calculations:
(Contracts, Article 8.02(D)(4) of ECF Nos. 1-1, 1-2, 1-3, 1-4.)
The Contracts further provide that Voith expressly warrants, inter alia, that Voith's Work, including the Voith Equipment, will conform to the Contracts and be free of defects in workmanship and material and that all Voith's services included within the work, and including the Voith Equipment, will be performed in accordance with the Contract. (Complaint, ¶¶ 24, 27; Article 5 of "General Conditions" of Contracts, ECF Nos. 1-1, 1-2, 1-3, 1-4.) Under the Contracts, Voith must perform all work "consistent with the professional standards of skill, care, and diligence exercised by entities licensed to provide (where required under Laws and Regulations) and regularly providing comparable services and work on power plant projects of similar complexity, design, and cost in the United States." (Id.)
In addition, upon written notice of a breach of warranty, Voith must, at its own cost, investigate and correct any non-conforming work. (Article 5, Section 5.09.G of Contracts, ECF Nos. 1-1, 1-2, 1-3, 1-4.) The Contracts go on to provide as follows:
(Article 5, Sections 5.09.I, 5.09.J, 5.09.K, and 5.09.L of Contracts, ECF Nos. 1-1, 1-2, 1-3, 1-4.)
In October 2015, Voith's on-site personnel at the Meldahl Project observed, and advised Voith's engineering department of, movement in the Meldahl Unit 2 discharge ring. (Exhibits 3 and 4, ECF No. 59-1, PAGEID ## 690, 692-93.) Specifically, Scott Burtch, Voith's Site Manager for the Meldahl Project, was "very concerned" about the "excessive" pulsating and vibrating he observed:
(Exhibit 47, Declaration of Scott Burtch ("Burtch Declaration"), ECF No. 63-1, ¶¶ 4-5 (emphasis in the original).)
In November 2015, during commissioning of the plant at Meldahl, AMP and its consulting engineers at MWH, expressed concerns about vibrating and pulsating observed in the Meldahl Unit 2 discharge ring during unit operations. (Exhibit 1, ECF No. 59-1, PAGEID ##681-83.) On November 9, 2015, Voith responded as follows:
(Exhibit 2, ECF No. 59-1, PAGEID # 686.)
At the end of 2015, discharge rings designed by and manufactured by Voith that were used in hydroelectric plants in Brazil were cracking. (Exhibit 14, excerpt of Deposition of Nathan Eveler, ECF No. 59-1, PAGEID # 722-23.)
On February 11, 2016, Voith sent to MWH, AMP's engineers, a fatigue analysis on the Meldahl discharge rings. (Exhibit 21, ECF No. 59-2, PAGEID # 748; Exhibit No. 22, ECF No. 59-2, PAGEID ## 750-86.)
In early February 2016, a crack was discovered in the discharge ring of Unit 2 at the Meldahl Project, requiring that Unit 2 be shut down. (Exhibit 16, ECF No. 59-2, PAGEID #732.)
On April 1, 2016, Voith internally noted that repairs would be needed to all 11 units at Cannelton, Smithland, Willow Island, and Meldahl hydro plants and acknowledged that "the original design flaw" in the discharge rings originated with Voith's Heidenheim, Germany Engineering Center ("VHEC"), which originally designed the discharge rings. (Exhibit 23, ECF No. 59-2, at PAGEID # 788.)
By May 2016, cracks also appeared in Cannelton Units 2 and 3, requiring they be shut down while Voith mobilized welders to make repairs. (Exhibit 24, ECF No. 59-2, PAGEID ##791-93; Exhibit 25, ECF No. 59-2, PAGEID ## 796-97.) Voith acknowledged that the discharge rings at Cannelton were "cracking faster and more severely than the other sites." (Exhibit 24, ECF No. 59-2, PAGEID # 791.) In February 2017, two additional cracks appeared in Cannelton Unit 3. (Exhibit 28, ECF No. 59-2, PAGEID # 806.) Voith internally acknowledged that "the discharge ring repairs will be taking a little longer than anticipated." (Exhibit 41, ECF No. 59-3, PAGEID # 893.) Voith began discharge ring repairs in October 2017. (Exhibit 31, ECF No. 59-3, at PAGEID # 815.)
After Voith completed repairs on the Cannelton discharge rings in early June 2018, new cracks appeared in the repaired Cannelton units in late June 2018. (Exhibit 32, ECF No. 59-3, PAGEID # 818; Exhibit 33, ECF No. 59-3, PAGEID ## 821-23; Exhibit 34, ECF No. 59-3, PAGEID ## 825-26.) On June 29, 2018, AMP notified Voith of two new cracks at Meldahl Units 1 and 2, requiring that Unit 1 be shut down and that Unit 2 operate at 50% rated power. (Exhibit 34, ECF No. 59-3, PAGEID # 825.)
On September 18, 2018, Voith discovered cracks in all three units at Smithland, resulting in the shutdown of the entire Smithland plant. (Exhibit 38, ECF No. 59-3, PAGEID ## 848-49.) On the same day or the next day, a crack was also discovered in Cannelton Unit 2 (collectively, with the Smithland cracks, "the September 2018 cracks"), requiring that unit, too, be shut down. (Id. at PAGEID # 848; Exhibit D, ECF No. 62-4.) On September 21, 2018, Voith sent AMP a letter reminding AMP that the modifications at Smithland had been delayed in order to accommodate AMP's operations over the summer, and, therefore, not all Voith-recommended modifications had been implemented. (Exhibit C, ECF No. 62-3.) In the same letter, Voith also detailed a unit-by-unit plan for completion of the necessary repairs to the September 2018 cracks and associated modifications. (Id.)
On September 30, 2018, Voith issued to AMP a "Root Cause Analysis" ("RCA"), which acknowledged discharge ring cracking at the various Projects, subsequent investigation, and explained the scope of the RCA as follows:
(Exhibit 39 (RCA), ECF No. 59-3, PAGEID # 854 (emphasis added); see also id. at PAGEID ##856 ("Note that the cracks discovered in September 2018 at Smithland and Cannelton are still under investigation and an addendum will be added as appropriate."), 878 (same).)
As of the date of the RCA, there were thirty-one cracks in the discharge rings throughout the four Project locations. (Id. at PAGEID # 856.) The RCA acknowledged that "[t]here are [Voith] modifications that have accumulated a significant number of operational hours without reoccurrence; however, in some instances, the initial modified location cracked." (Id. at PAGEID # 876.) Eleven of the thirty-one cracks occurred in modified locations. (Id. at PAGEID # 856.) The RCA determined that after Voith redesigned and re-implemented its recommended modifications, no additional issues have been reported in any of these areas, except in one area caused by a weld defect in the original manufacture of the discharge ring. (Id. at PAGEID # 877.)
The RCA also identified the "Root Cause" and "Secondary Root Cause" of the cracks as follows:
(Id. at PAGEID # 867.)
(Id. at PAGEID # 868.)
On October 26, 2018, Voith sent a letter to AMP, addressing the crack discovered at Cannelton in September 2018. (Exhibit D, ECF No. 62-4.) Voith noted that its repair work to that crack began on September 25, 2018, and was completed on October 15, 2018. (Id.) Voith advised that this repair work did not impact the completion of planned modifications on the Cannelton units. (Id.)
AMP represents in its briefing that Voith made all repairs to the Cannelton discharge rings by February 2019. (ECF No. 59 at 11.) Voith represents in its briefing that there are currently no known un-remediated cracks in the discharge rings and that all cracks were repaired at Voith's cost. (ECF No. 62 at PAGEID ## 1074, 1076; ECF No. 80.)
On August 14, 2017, AMP filed this action against Voith, asserting four claims for breach of contract and four claims for breach of express warranty based on the four Projects at Smithland, Cannelton, Meldahl, and Willow Island. (ECF No. 1.) AMP specifically alleged that Voith materially failed to perform as required by the Contracts and breached as follows:
(Complaint, ECF No. 1, ¶ 28; see also id. at ¶¶ 40, 45.) AMP goes on to allege as follows:
(Id. at ¶ 46-47.) AMP seeks damages in an amount of "at least $40 million[.]" (Id. at PAGEID # 20.)
According to the parties' Rule 26(f) Report submitted on November 30, 2017, the parties agreed to exchange lists of custodians from whom ESI will be obtained, proposed keyword search terms, and proposed date ranges to be applied to the electronically stored information ("ESI") by January 30, 2018. (ECF No. 27 at 4.) On December 18, 2017, based on the parties Rule 26(f) Report, the Court ordered that the parties begin a rolling production of documents by March 2, 2018. (ECF No. 30 at 2.)
On April 23, 2018, the Court issued the Stipulation and Order Regarding Protocol for the Search for and Production of Electronically Stored Information and Hard Copy Documents ("ESI Protocol"). (ECF No. 38.) The ESI Protocol provided, inter alia, as follows:
(Id. at PAGEID # 453 (Section III.D and E).) On the same day, the Court, by separate Order, ordered that ESI production be completed by September 28, 2018. (ECF No. 39.)
Following ESI discovery disputes and after considering the positions of the parties, the Court issued the Memorandum of Decision on June 4, 2018. (ECF No. 46.) This Decision memorialized the methodology for applying keyword searches, including that Voith's singleword Project name search terms were over-inclusive and that AMP's request that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of common construction terms and the names of hydroelectric parts was overly inclusive and would yield confidential communications about other projects Voith performed for other customers. (Id.) With this guidance form the Court, Voith began running searches on the data it had collected from its 190 custodians for the agreedupon date range of January 1, 2006 to August 14, 2017, using forty-three search terms. (ECF No. 62 at PAGEID # 1084.)
Shortly thereafter, Voith proposed modifications to the word searches to run searches on ESI already collected. (Exhibit I, ECF No. 62-9.) AMP refused the proposed modifications, advising that the ESI Protocol had been negotiated and that Voith did not show good cause for the proposed modifications "at this late stage in the process[.]" (Exhibit J, ECF No. 10.)
In June and July 2019, the parties exchanged the names of mediators and agreed upon a mediator with an eye towards mediating in the fall of 2019.
Thereafter, despite progress made with ESI production, the process was onerous, resulting in the Court granting the parties' request to extend the deadline for completing ESI production to November 15, 2018, and then to December 15, 2018. (Minute Entry dated July 31, 2018; Minute Entry dated August 28, 2018; ECF Nos. 49, 50.) Fact discovery was later extended to December 3, 2019. (ECF No. 54.) Thereafter, discovery progressed well (Minute Entry dated May 6, 2019; Minute Entry dated June 12, 2019), but still required modification of the case schedule and ultimately extending the fact discovery deadline to June 5, 2020. (ECF Nos. 69, 71, 74.)
On January 18, 2019, AMP sent Voith a letter noting the additional new discharge ring cracks that occurred as late as 2018, and, "[g]iven the on-going nature of this material defect the previously agreed to ESI termination date of August 14, 2017 is not sufficient." (Exhibit 42, ECF No. 59-3, PAGEID # 895.) AMP therefore requested that Voith re-collect ESI from August 14, 2017, to the present for thirty custodians who had worked on the discharge rings and requested Voith run thirty-seven search terms paired with select AMP Project-specific terms against their ESI. (Id. at PAGEID ## 895-98.)
Unable to resolve the dispute, the parties presented the matter to the Court, which ordered the matter to be briefed. (ECF Nos. 55.) After this issue was fully briefed (ECF Nos. 59, 62, 63), the Court permitted supplemental briefing to reflect information obtained through the discovery process. (ECF Nos. 75, 76, 80.) This matter is now ripe for resolution.
"District courts have broad discretion over docket control and the discovery process." Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (citations omitted). "`It is well established that the scope of discovery is within the sound discretion of the trial court.'" Id. (quoting Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993)). Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery:
Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 33(a)(2) ("An interrogatory may relate to any matter that may be inquired into under Rule 26(b)."), 34(a) ("A party may serve on any other party a request within the scope of Rule 26(b)[.]"). In short, "a plaintiff should have access to information necessary to establish her claim, but [] a plaintiff may not be permitted to `go fishing'; the trial court retains discretion." Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (citing Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)); see also Superior Prod. P'ship v. Gordon Auto Body Parts Co., Ltd., 784 F.3d 311, 320-21 (6th Cir. 2015) ("In sum, `[a]lthough a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted to `go fishing' and a trial court retains discretion to determine that a discovery request is too broad and oppressive.'" (quoting Surles ex rel. Johnson, 474 F.3d at 305)).
"[T]he movant bears the initial burden of showing that the information is sought is relevant." Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citing Gruenbaum v. Werner, 270 F.R.D. 298, 302 (S.D. Ohio 2010)). If the movant makes this showing, "then the burden shifts to the non-movant to show that to produce the information would be unduly burdensome." Id. (citing O'Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015)); see also Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment (stating that a party claiming undue burden or expense "ordinarily has far better information—perhaps the only information—with respect to that part of the determination" and that a "party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them").
AMP seeks an order compelling Voith to produce responsive documents and ESI utilizing a revised period of time, additional custodians, and key search terms in order to capture information concerning the post-August 2017 cracking of the discharge rings at the four Projects. (See generally ECF Nos. 59, 63, 76.) Specifically, AMP seeks ESI and documents created after August 14, 2017, to the present. AMP initially proposed using for the ESI search the following sixteen custodians ("the first-requested custodians"), whom AMP believed "were involved in the discharge ring repairs and are represented in the exhibits AMP has filed in support of its Motion to Compel":
(ECF No. 59 at 13-14.)
In its Supplemental Memorandum, however, AMP represented that it was willing to narrow its request to the following twelve custodians ("the amended-requested custodians"):
(ECF No. 76 at 5 n.7; List of amended custodians and search terms, Exhibit D, ECF No. 76-4.)
AMP initially requested that AMP use the following search terms ("the first-requested search terms"):
(ECF No. 59 at 14-15 (explaining that "[t]he use of an exclamation point ("!") denotes using a stemming or root expansion function to capture variants of a root term (i.e. "pulsate," "pulsating," etc.)").)
In its Supplemental Memorandum, AMP represented that it also was willing to narrow its request to the following search terms ("the amended-requested search terms"):
(ECF No. 76 at 5 n. 7; List of amended custodians and search terms, Exhibit D, ECF No. 76-4.)
AMP contends that Voith's ESI related to the discharge rings since August 14, 2017, is important to the issues in this case as defects in the discharge rings present potential safety concerns to AMP and its personnel and "financial risk" to AMP, including engineering costs. (ECF No. 59 at 15-18; ECF No. 63 at 3-6; ECF No. 76.) AMP specifically argues that the requested discovery is relevant to its claims that Voith breached the parties' Contracts by defectively designing and manufacturing the discharge rings. (Id.)
Voith disagrees, arguing that AMP has not identified any damages claimed in this lawsuit due to discharge ring issues. (ECF No. 62 at PAGEID ## 1091-94; ECF No. 80.) Voith also contends that the requested discovery is not warranted because Voith has repaired, at its own cost, all known discharge ring cracks across the eleven units at all four Projects and that there are currently no known cracks in any of the rings in the operating turbine units. (Id.) According to Voith, AMP's present request for additional ESI is a fishing expedition searching for information to permit AMP to assert that Voith engaged in a willful misconduct. (Id.) Voith goes on to argue that AMP's failure to request this discovery earlier in the litigation, particularly when the parties were negotiating ESI search parameters, undermines AMP's present position that the requested ESI is important to the issues in this litigation. (Id.)
Voith's arguments are not well taken. The Court is persuaded that information regarding the cracks in the Projects' discharge rings from August 14, 2017, to the present ("the new time period") is relevant to at least AMP's breach of contract claims, which require AMP to prove the following: "(1) that a contract existed, (2) that the plaintiff `performed its contractual obligations,' (3) that the defendant `failed to fulfill its contractual obligations without legal excuse,' and (4) that the plaintiff `suffered damages as a result of the breach.'" Norfolk S. Ry. Co. v. Allied Erecting & Dismantling Co., Inc., 775 F. App'x 178, 190 (6th Cir. 2019) (quoting Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 661 N.E.2d 218, 226 (1995)). While Voith asserts that AMP has failed to identify any damages AMP suffered flowing from defects in the discharge rings, AMP specifically alleges that it has been damaged by Voith's breaches related to the discharge rings, including incurring additional engineering costs. (Complaint, ¶¶ 46, 47, 53, 59, 65, 71, Prayer for Relief (seeking in excess of $40 million in damages).) AMP is entitled to explore the extent of the defects in the Projects' discharge rings during the new time period, which is relevant to the scope of AMP's damages, an element of its claims. Fed. R. Civ. P. 26(b)(1).
Moreover, AMP also specifically alleges that Voith materially breached the Contracts by, inter alia, delivering defectively manufactured discharge rings and defectively designing and/or manufacturing equipment and equipment components. (Complaint, ¶¶ 28(c), (d); 40(c), (d); 45(c), (d); 51(c), (d); 56(c), (d); 63(c), (d); 69(c), (d).) The extent of defects in the Projects' discharge rings during the new time period, including the September 2018 cracks, is therefore relevant to the scope of Voith's alleged breach of the Contracts. Fed. R. Civ. P. 26(b)(1).
Voith nevertheless insists that the RCA thoroughly addressed issues that caused the cracking in the discharge rings and that the September 2018 cracks present no new issues beyond those detailed in the RCA, arguing that the RCA specifically addressed planned split flange modifications and welding discontinuity, which was what caused the September 2018 cracks at Smithland and Cannelton. The Court, however, is not persuaded that the RCA is a sufficient substitute for the requested ESI over the new time period. As detailed above, the RCA specifically excluded any assessment of the September 2018 cracks, noting that those cracks were still under investigation. (Exhibit 39 (RCA), ECF No. 59-3, PAGEID ## 854, 856, 878; see also Contracts, Article 8.02(D)(4) of ECF Nos. 1-1, 1-2, 1-3, 1-4 (requiring Voith to conduct and submit to AMP a "root cause analysis" if "there are two or more similar failures of any component of the Work").) Moreover, even if the Court accepts that the RCA implicitly addressed the September 2018 cracks, AMP has submitted evidence, including deposition testimony taken in 2019, that may undermine the RCA's root cause that Voith failed to design for fatigue. (Compare Exhibit 39 (RCA), ECF No. 59-3, PAGEID # 868 (stating that "the original design was based on static analysis. The discharge rings were exposed to cyclic loading which caused fatigue cracking in locations of high stress amplitudes") with Exhibit 48 (excerpt of deposition of Randy Seifarth, P.E., ECF No. 63-2 (testifying that there was a fatigue analysis on the discharge ring) and Exhibit 49 (excerpt of deposition of Daniel McGinnis), ECF No. 63-3 (same).) In addition, while Voith disputes its significance, AMP has provided recent testimonial evidence from Voith witnesses regarding Voith's task force investigating cracks in discharge rings as well as Voith's efforts. (See also Exhibit A, ECF No. 76-1 (excerpt of Deposition of Norbert Riedel, Voith's Chief Technical Officer from Germany (taken July 10, 2019), testifying regarding a discharge ring task force that generated updates in various forms, including reports, emails, or memorandum, and that the documents are easily accessible by him and others); Exhibit B, ECF No. 76-2 (excerpt of Deposition of Ben Scheunert, Voith's engineer (taken August 14, 2019), testifying that he and other Voith employees were instructed in and around the summer and fall of 2018 to develop a potential new design for AMP's discharge rings).) Neither the RCA nor Voith's present representations in its briefing is a replacement for (or otherwise obviates) the need for this information. Based on this record, the Court is therefore persuaded that the requested ESI for the new time period is relevant to AMP's breach of contract claims, which include the scope of the breach as well as the scope of AMP's damages. Fed. R. Civ. P. 26(b)(1).
Finally, Voith contends that AMP's failure to seek the requested discovery when the parties were negotiating ESI parameters in early 2018 undermines AMP's present contention that this discovery is relevant to its claims. However, the ESI Protocol obligates the parties to "use reasonable efforts to identify and, if appropriate, produce ESI created after this date [August 14, 2017] on an as needed basis" and the ESI Protocol does not preclude "a motion to the Court as discovery progresses seeking use of broader or different Search Terms than initially proposed or agreed upon, on good cause shown." (ECF No. 38 at PAGEID # 453 (Section III.C, D, and E).) Moreover, new evidence uncovered in the discovery process after the ESI search terms, timeframe, and custodians were negotiated prompted the present Motion to Compel. (See, e.g., Exhibit 48, ECF No. 63-2 (Seifarth deposition excerpt); Exhibit 49, ECF No. 63-3 (McGinnis deposition excerpt); Exhibit A, ECF No. 76-1 (Riedel deposition excerpt); Exhibit B, ECF No. 76-2 (Scheunert deposition excerpt); see also Burtch Declaration.) Finally, fact discovery does not close until June 5, 2020 (ECF No. 74), distinguishing this action from the cases cited by Voith. See United States ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 236, 239-41 (D.D.C. 2011) (denying request for additional ESI searches where discovery had closed and the responding party had already conducted ESI searches, including an initial search of databases for twenty custodians and an expanded search of databases for 230 custodians); Davidson v. Apple, Inc., No. 16-cv-04942, 2018 WL 6169349 (N.D. Cal. Nov. 26, 2018) (denying in part motion to compel filed "very late in the discovery period" to the extent the plaintiffs already "compromised" regarding that discovery in a previously resolved discovery dispute but granting in part as to other requested discovery).
In short, for all these reasons, the requested discovery relating to the cracks in the discharge rings at the Projects from August 14, 2017, to the present is relevant to AMP's breach of contract claims. Fed. R. Civ. P. 26(b)(1).
The parties next dispute whether the requested discovery is unduly burdensome and proportional to the needs of this case. As previously discussed, once AMP shows that the information sought is relevant, the burden shifts to Voith to demonstrate that producing the information would be unduly burdensome. Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19, 2017) (citations omitted); see also Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment (stating that a party claiming undue burden or expense "ordinarily has far better information—perhaps the only information—with respect to that part of the determination" and that a "party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them").
Here, Voith contends that the burden of production outweighs any marginal relevance of the requested discovery. In support, Voith first explains its ESI production to date and the accompanying cost and burden of that production. Specifically, Voith represents that it has already produced 540,790 electronically-stored documents in December 2018, and produced an additional 169,396 documents in February 2019. (ECF No. 62 at PAGEID # 1086 (representing further that, of that data, over 32,000 documents mentioned "discharge rings").) Voith also submits the Declaration of Jonathan Robins, who is the National Director of E-Discovery Operations for Ricoh USA, which performed data culling, processing, and hosting services in connection with Voith's production of ESI. (Exhibit M, ECF No. 62-13, ¶¶ 1-3 ("Robins Declaration").) Mr. Robins avers that, to date, Ricoh has billed Voith approximately $1.1 million for its E-Discovery services. (Id. at ¶ 10.) Voith notes that Ricoh's bill does not include fees and time expended by Voith's counsel and employees, which included time collecting unfiltered data from 190 custodians. (Id. at ¶¶ 4-5.) The volume of unfiltered data Voith collected and transmitted to its E-Discovery vendor was approximately 15 TB.
Voith goes on to explain that compelling Voith to collect data from fifteen
Voith's arguments are not well taken. As discussed in detail above, the Court concludes that the requested discovery is relevant to AMP's breach of contract claims and there is no substitute for this information, which is solely in Voith's possession. Fed. R. Civ. P. 26(b)(1), (b)(2); cf. Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment. While Voith presents evidence that Ricoh's cost for producing this ESI for the new time period for fifteen custodians using thirty-three search terms could exceed $100,000, the Court notes that this cost is not disproportionate to the $1.1 million for the cost of Ricoh's services related to ESI produced to date or to the amount AMP alleges at issue in this action ($40 million). Moreover, Voith's estimate of Ricoh's cost for additional ESI is based on AMP's initial request identifying sixteen custodians and thirty-three new search terms. AMP later revised and reduced its request to twelve custodians and twenty-two search terms, which will presumably require fewer resources to search and produce. (See ECF No. 76 at 5 n.7; List of amended custodians and search terms, Exhibit D, ECF No. 76-4.) These numbers— twelve custodians and twenty-two search terms— are also far fewer than the 190 custodians and forty-three search terms previously used in the prior ESI collection. While the Court cannot say based on the present record that the specific number and identity of custodians and specific search terms are appropriate, in light of the cost and scope of ESI conducted to date, additional ESI from the new time period is not disproportionate in this litigation where AMP has alleged $40 million in damages, including engineering costs.
Finally, to the extent that Voith complains that the timing of AMP's request increases the burden of production, the Court again notes that the ESI Protocol expressly obligates the parties to use reasonable efforts to produce ESI created after August 14, 2017, and authorizes the filing of a motion to seek broader or different search terms. (ECF No. 38 at PAGEID # 453 (Section III.C, D, and E).) Moreover, as previously discussed, new evidence uncovered in the discovery process, including as recently as July and August 2019, and after the parties negotiated ESI search terms, timeframe, and custodians, supports the timing of AMP's present request. (See, e.g., Exhibit 48, ECF No. 63-2 (Seifarth deposition excerpt); Exhibit 49, ECF No. 63-3 (McGinnis deposition excerpt); Exhibit A, ECF No. 76-1 (Riedel deposition excerpt); Exhibit B, ECF No. 76-2 (Scheunert deposition excerpt); see also Burtch Declaration.) Finally, the Court notes that Voith has more than six months to produce this ESI as fact discovery does not close until June 5, 2020. (ECF No. 74.)
Accordingly, Re-Filed American Municipal Power, Inc.'s Motion to Compel (ECF No. 59) is
Finally, Voith's request for AMP to bear the cost of producing the requested discovery (ECF No. 62 at PAGEID # 1097) is
