A recent decision involving a business dispute over the sale of a company illustrates the standard a party must meet to compel designation of an ESI custodian: the judge denied the motion, finding it was the movant’s burden to show that the additional requested custodians were in the possession of “uniquely relevant information” and not the respondent’s responsibility to prove that they were not.  This deference to the responding party is directly aligned with Principle 6 of the Sedona Principles, which provides “[a] responding party should determine how to meet its own preservation and production obligations.”

We routinely advise our clients on discovery motion practice, always ensuring that discovery decisions are supported and defensible. 

The plaintiff in Servicios Funerarios GG, S.A. de C.V. v. Advent International Corporation, No. 23-10684-IT, 2023 WL 7332836 (D. Mass. Nov. 7, 2023) purchased Mexico’s oldest active funeral-services company from affiliates of funds managed by the defendant. The plaintiff subsequently sued the defendant, alleging that it misrepresented the true financial condition of the funeral-services company. The defendant countered that the plaintiff was engaged in a campaign to extort it by asserting meritless civil and criminal claims in the Mexican court system.

During the course of discovery, the plaintiff argued that the defendant’s Chairman, Co-Head of Latin American Operations, and Chief Compliance Officer should be included as custodians, and the defendant disagreed. The plaintiff moved to compel the defendant to search the custodial files of the three individuals and produce responsive documents.

The defendant did not contest that the disputed custodians could potentially have responsive documents, but instead argued that other individuals who were already designated as custodians were more likely to be in the possession of relevant documents and information, and that any documents obtained from the disputed custodians would likely be duplicative. The defendant also argued that the request for documents from the three additional custodians, who were high-ranking employees of the company, constituted harassment on the part of the plaintiff. The plaintiff countered that the defendant provided no support for its representation that the custodians would be duplicative.

The court denied the motion to compel, finding:

• The defendant was in the best position to know and identify appropriate custodians;
• The plaintiff bore the burden of showing the additional requested custodians were in the possession of "uniquely relevant information," which it did not meet.

The court’s reasoning in Servicios Funerarios illustrates one of the main rationales behind Sedona Principle 6’s recommendation that a party should be allowed to fulfill its own discovery obligations without direction from the court or opposing counsel, absent a showing of a specific deficiency: determining what is relevant and proportional is a complex, fact-specific inquiry, one that the responding party is in the best position to make.