Case Law: B & B Hardware, Inc. v. Fastenal Co

Court Admonishes Parties for “Armed Combatant” Approach to Discovery

B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011). In this discovery dispute, the plaintiff sought to compel production and requested a hearing to determine what the defendant had done to meet its obligation to produce responsive ESI, forensically image hard drives and conduct a search of 1,182 backup tapes (estimated to cost $84,854,704.90). Characterizing the plaintiff’s motion as peremptory, the court determined the plaintiff failed to abide by Local Rule 7.2(g) of the U.S. District Court for the Eastern District of Arkansas which requires attorneys to confer in good faith before filing a motion to compel. Further, the court noted the defendant produced approximately 31,000 documents within the response period, thus fulfilling its production obligations. Admonishing the plaintiff’s actions, the court declined to compel discovery or grant a hearing. Regarding the issues of forensic imaging and backup tapes, the court found the defendant sufficiently raised objections on the grounds of undue burden and scope, denied the motion and warned the parties to “act less like armed combatants and more like highly skilled professionals” going forward.

Commentary

This case provides an excellent example of a party being too eager to “jump the gun” and file a motion to compel discovery responses. As the court noted, the defendant’s time to respond and produce the requested ESI had not even expired; in fact, the defendant produced the required documents before time ran out.

This case also demonstrates the increased pervasiveness ESI is having throughout jurisdictions nationwide. The Eastern District of Arkansas is not one we read opinions from often (more typically the “major” decisions come from states like New York, California, Florida and Texas) but it is important for practitioners to remember that ediscovery is not limited to a particular state or territory. Practitioners must educate themselves on ediscovery best practices and procedures on a general scale, and then take efforts to understand the local obligations they must fulfill. In this case, plaintiff’s counsel had a duty under the Local Rules of the district court to meet and confer in good faith prior to filing a motion. The plaintiff failed to do so and was admonished by the court. Getting on the court’s bad side is never where a practitioner wants to be. Thus, parties must be familiar with local rules and customs, and model their behavior accordingly.