The Rule 37(f) “safe harbor provision” allows for business operations to continue, but is sometimes difficult to interpret, especially when discovery requests are very broad. I always encourage clients to meticulously document all of their ESI-related activity and be very precise with their language in both requesting and responding to requests.
One of the best discussions of how to respond is in Turner v. Resort Condominiums, a case that pre-dates the amendment of the Federal Rules. In Turner, U.S. District Court of the Southern District of Indiana commented about how the parties danced “the familiar minuet” of “overly broad discovery demands…followed by overly broad objections” until “experienced counsel…got down to more serious and specific line-drawing on discovery.” As with many types of disputes, lean on the facts and carefully document every step. Check out Turner, it’s a good read.
James Crane is an attorney, consultant and author with extensive experience in e-discovery management. In his practice, James has defended corporate clients in a variety of complex matters including multi-jurisdictional class actions and internal corporate and government regulatory investigations.
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