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The Louisiana Third Circuit recently ​affirmed a trial court discovery ruling that allowed the defendant to design its own e-discovery protocol without input from plaintiffs. In doing so, the Third Circuit bolstered the longstanding principle that trial courts have considerable discretion over discovery issues. 

Appellate decisions on e-discovery in Louisiana are rare due to the considerable discretion granted to trial courts on discovery issues; thus, it is worth paying attention when one pops up. The Louisiana Third Circuit recently released such a decision in Acadiana Renal Physicians, A Medical Corp. v. Our Lady of Lourdes Regional Medical Center, Inc., 23-0372 (La. App. 3 Cir. 6/28/23), –So. 3d–, whereby the court affirmed the trial court’s discretion to deny the plaintiffs’ demand for control over the defendant’s e-discovery protocols. 

​The Third Circuit’s opinion in this case is the culmination of a year-and-a-half-long discovery dispute. In February 2022, Plaintiffs served their fourth set of discovery requests that included requests for electronically stored information (“ESI”). The Defendant responded with numerous objections, prompting Plaintiffs to file a Motion to Compel Responses in late June 2022. The trial court granted Plaintiffs’ Motion to Compel in September 2022, ordering the Defendant to produce various categories of documents from the fourth set of discovery requests. Following the Motion to Compel, Defendant retained a third-party vendor to harvest potentially responsive documents for production.

In December 2022, Plaintiffs filed a Motion for Discovery Sanctions, alleging that Defendant had failed to obey the trial court’s discovery order. The trial court denied the Motion for Sanctions but ordered Defendant to (1) identify to Plaintiffs the search terms and search methods being used to identify responsive documents, and (2) provide written updates to Plaintiffs on the status of discovery every fifteen days. Plaintiffs thereafter appealed this denial, arguing that the trial court had abused its discretion in denying relief and in excluding Plaintiffs from the discovery process by allowing Defendant to use its own search terms and methods for identifying responsive documents.

The Third Circuit began its analysis by identifying that “[t]he trial court has much discretion when choosing the appropriate sanctions” and that it would not overturn the trial court’s decision “absent a clear showing that it abused its discretion.” In making its decision to deny sanctions, the trial court considered the “seemingly laborious process” of Defendant reviewing over 170,000 documents identified by its third-party vendor and accepted that Defendant’s review was “significant and ongoing.” The Third Circuit accepted this as evidence that Defendant was attempting to comply with the trial court’s discovery orders and that, therefore, the trial court had not abused its discretion in refusing to levy sanctions.

With regard to Defendant’s discovery protocols, Plaintiffs argued that allowing Defendant to use its own search terms and methods had enabled it to avoid the timely production of documents; thus, Plaintiffs should be involved in dictating the search terms and methods being used. However, while the Third Circuit “understood Plaintiffs’ frustration with the slow pace of the discovery process,” the trial court did not abuse its discretion in allowing Defendant to proceed with its own protocols.

Given the discretion afforded to trial courts on discovery matters, the Third Circuit’s opinion gives us a rare additional data point on e-discovery jurisprudence in Louisiana. Notably, the opinion indicates that one party’s unilateral control over its own e-discovery protocols is not per se insufficient or unreasonable. This is consistent with Sedona Principle 6, which has long recognized that “a responding party is best situated to preserve, search, and produce its own ESI.”  The Sedona Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018). Furthermore, this opinion ultimately falls in line with the classic rule of discovery in Louisiana: what the trial court says, generally goes.  

For more information on this topic, contact Liskow’s John Troutman at jtroutman@liskow.com, Lauren Bridges at lbridges@liskow.com, or Joe Heaton at jheaton@liskow.com.

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Photo of John Troutman John Troutman

John Troutman is a litigator. John has experience representing clients in a wide variety of legal matters ranging from construction disputes to community property partitions; class actions to derivative actions; products liability to professional liability; collection lawsuits to bankruptcy proceedings; and more.  John…

John Troutman is a litigator. John has experience representing clients in a wide variety of legal matters ranging from construction disputes to community property partitions; class actions to derivative actions; products liability to professional liability; collection lawsuits to bankruptcy proceedings; and more.  John has taken cases to trial across Louisiana, and has represented clients in arbitrations, mediations, and administrative proceedings before state agencies.

John grew up in Roanoke, Louisiana, and graduated from Welsh High School.

Photo of Lauren Bridges Lauren Bridges

Lauren Bridges is a maritime and environmental lawyer focusing on toxic torts, personal injury, property damage, economic loss, and other disputes in the maritime and energy industries. She has experience advocating for her clients in federal and state courts, at the trial and…

Lauren Bridges is a maritime and environmental lawyer focusing on toxic torts, personal injury, property damage, economic loss, and other disputes in the maritime and energy industries. She has experience advocating for her clients in federal and state courts, at the trial and appellate levels, in both single-plaintiff and mass tort actions. Throughout her career, Lauren has represented a variety of maritime operators in personal injury suits involving seamen and longshoremen. She has also gained extensive experience representing and defending clients in the maritime and energy sectors in Jones Act and Longshore Act claims, disputes involving land contamination and personal injury toxic tort exposure from Naturally Occurring Radioactive Material (NORM), refinery emissions, and oil spills. Fortune 500 clients trust Lauren to take a lead role in complex litigation involving multiple defendants and often hundreds or thousands of plaintiffs where the scope of discovery and e-discovery can be particularly voluminous.

Photo of Joe Heaton Joe Heaton

Joe is an energy litigator practicing in the firm’s Lafayette office.

Joe received his Juris Doctor, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University, where he served on the SBA Committee on Safety, Sensitivity, and Sustainability and as…

Joe is an energy litigator practicing in the firm’s Lafayette office.

Joe received his Juris Doctor, magna cum laude, from the Paul M. Hebert Law Center, Louisiana State University, where he served on the SBA Committee on Safety, Sensitivity, and Sustainability and as the SBA Ethics Committee Chair.  He also received his Masters Degree in Psychology from the University of Tennessee at Chattanooga where he completed his thesis, “Exploring relationships between stress and olfaction as mediated by neuropeptide y.”