Conner Cook, by and through his natural parents, Tony Cook and Kadie Cook, and Tony Cook and Kadie Cook, Individually and Terry Cook, by and through his natural parents, Tony Cook and Kadie Cook, and Tony Cook and Kadie Cook, Individually, Plaintiffs, v. The Pep Boys - Manny, Moe & Jack, Inc., and Scepter Corporation, Defendants 1:09-CV-00006 Filed January 06, 2011 Counsel Ronald J. Berke, Megan England Demastus, Berke, Berke & Berke, Chattanooga, TN, William P. Walker, Jr., Walker & Morgan, LLC, Lexington, SC, Diane M. Breneman, Breneman Dungan, L.L.C., Kansas City, MO, for Plaintiffs. John R. Tarpley, David A. Changas, Mary Elizabeth Haltom, Lewis, King, Krieg & Waldrop, P.C., Nashville, TN, Toby R. Carpenter, Kennerly, Montgomery & Finley, P.C., Knoxville, TN, Michael J. Goldman, Hawkins Parnell Thackston & Young, LLP, Atlanta, GA, for Defendants. Carter, William B. Mitchell, United States Magistrate Judge ORDER *1 This matter came before the Court on the plaintiffs' motion for sanctions [Doc. 70] and the defendants' motion to compel the depositions of the plaintiffs' experts. [Doc. 75]. A hearing was held on the motions on Monday, December 20, 2010. Attorneys Diane Breneman, William Walker, Chuck Slaughter, Ronald Berke and Megan Demastus were present for the plaintiffs. Attorneys Michael Goldman and John Tarpley were present for the defendants. The purpose of this order is to memorialize the Court's decision which was announced to the parties at the end of the December 20, 2010 hearing. Accordingly, this Order is entered nunc pro tunc. Within the parameters stated herein, plaintiffs' motion for sanctions [Doc. 70] is DENIED without prejudice to refiling the same, and defendants' motion to compel the depositions of plaintiffs' expert witnesses is DENIED. This action concerns the explosion or ignition of a gas can manufactured by defendant Scepter Corporation (Scepter) and sold by Pep Boys – Manny, Moe and Jack, Inc. (Pep Boys). Plaintiffs Connor and Terry Cook are two young brothers who were seriously burned when they were playing with matches and the gas can. One of plaintiffs' contentions in this case is that serious injury could have been avoided if the gas can had some type of flame arrester in the spout. A. Plaintiff's Motion for Sanctions Plaintiffs' motion for sanctions is brought under Fed. R. Civ. P. 37 and concerns defendants' efforts, or alleged lack of efforts, to recover electronically stored information responsive to the plaintiffs' written discovery requests. Plaintiffs have raised several contentions in regard to this electronic discovery: (1) plaintiffs contend Scepter did not timely initiate a litigation hold and valuable electronically stored data has been destroyed, (2) plaintiffs contend Scepter has not used good faith efforts to recover relevant information from its computers, and (3) Plaintiffs contend Scepter's 30(b)(6) witness was not prepared on the engineering issues designated by plaintiffs. The Court shall briefly address each contention. 1. Litigation Hold That Scepter never instituted a litigation hold for this case and has been destroying relevant data is a serious contention which Scepter disputes. According to Scepter, Scepter's president went to each person working in Scepter's office in Toronto and informed each person that he must not destroy any information relevant to this lawsuit. Scepter does admit it has no written litigation hold for this case. Plaintiff contends that any written policy Scepter has regarding data retention allows Scepter employees to destroy data, including e-mails, every few weeks. This is a matter the Court cannot resolve during a hearing held for argument. If sanctions are to be given, an evidentiary hearing must be held, and the Court must make specific findings that Scepter failed to institute a litigation hold and has been destroying relevant data. The Court will set forth a plan to move forward with discovery in this case at the end of this Order. If, after conducting further discovery including deposing the defendant's computer consultant, Mr. Mills, plaintiffs conclude they want to pursue sanctions against the Scepter for failure to institute a litigation hold and other discovery abuses, then plaintiffs may re-file their motion for sanctions and the Court will schedule an evidentiary hearing to decide the matter. *2 As for now, Scepter's counsel assures the Court that there is and has been a litigation hold in place since at least the inception of this lawsuit and that relevant information has not been destroyed. 2. Good Faith Efforts Scepter used a written list of search terms which the plaintiffs consider to have been woefully inadequate, to recover electronically stored information responsive to plaintiffs' discovery requests. However, at the hearing, Scepter's counsel stated, and plaintiffs' counsel did not deny, that defendants had requested more than once that plaintiffs assist them in creating a list of appropriate search terms and plaintiffs had declined to do so. Plaintiffs' counsel explained at the hearing that they had declined because they were not sure of the terms used by the defendant during the regular course of Scepter's business. The Court declines to sanction defendants for not using more or “better” search terms when plaintiffs' input into the search terms was requested and such assistance was refused. Plaintiffs are also frustrated defendants have not produced electronically stored data in native format. At the hearing, Scepter's counsel stated he did not know what “native format” meant. The Court declines to sanction defendants at this time for the failure to produce information in the format requested. However, the Court observes if counsel who is ultimately responsible for responding to the electronic discovery requests does not understand the nature of electronic data storage, he must seek expert assistance to help him. Lack of knowledge in this area will not be a valid excuse again.[1] The parties are to discuss which documents, already produced in TIFF format, are needed in native format and defendant is to provide those documents as soon as possible. Defendants' counsel stated for the first time at the December 20, 2010 hearing that Scepter has only searched its e-mail files and no other computer files. Plaintiffs vigorously objected noting that none of their discovery requests relating to electronically stored data are confined to e-mail files only. Plaintiffs assert defendants have also provided electronic data from other electronic files besides e-mail files. Defendant Scepter will have to review all plaintiffs' e-discovery requests and its responses to those discovery requests to determine whether it has properly responded to them. If it has not, it will have to supplement its responses. As discussed in Subsection C of this Order relating to a Discovery Plan, Scepter will have to provide the plaintiffs with an affidavit which sets forth the efforts already taken to provide the electronic data requested. 3. Rule 30(b)6) Witness Plaintiffs have already deposed Mr. Monckton, an executive at Scepter, for ten hours as Scepter's Rule 30(b)(6) representative. Since that deposition, however, plaintiffs have received 200,000 more documents from Scepter and asks that plaintiffs be given additional time to depose Mr. Monckton after reviewing the documents. The Court will allow Mr. Monckton to be deposed for an additional seven hours. Further, the plaintiffs have requested and are entitled to depose a Rule 30(b)(6) representative with engineering expertise in the matters designated by the plaintiffs. Defendants shall provide such a witness. It need not be Mr. Monckton who has testified on other matters as a Rule 30(b)(6) witness. This deposition should take place as soon as practicable. B. Defendants' Motion to Compel the Depositions of Plaintiffs' Expert Witnesses *3 Defendants move to compel the depositions of plaintiffs' expert witnesses. These depositions were originally set last month. However, after plaintiffs received 200,000 additional documents from defendants just prior to the scheduled depositions of their experts, plaintiffs cancelled the depositions to give their experts time to consider new information in the newly provided documents. Further, plaintiffs wish to complete the Rule 30(b)(6) deposition of Scepter's representative before their experts are deposed. The undersigned finds such a request reasonable and will not require plaintiffs to make their experts available to be deposed until plaintiffs have completed the Rule 30(b)(6) deposition of Scepter's representative and discovery pursuant to Rule 34 has been completed. Accordingly, defendants' motion to compel [Doc. 75] is DENIED. C. Discovery Plan The Court is disappointed at the progress made thus far in discovery. The Court expects that specific steps shall be taken promptly to rectify this matter. First, defendants shall provide to the plaintiffs on or before Thursday, December 30, 2010 an affidavit or affidavits providing the following information: – the architectural structure for Scepter's computer systems. This information should include such facts as the type of networks employed by Scepter, the number of servers Scepter uses, where and how data from the different departments within Scepter are stored, and whether executives, engineers, and management use their own desktop or laptop computers. The Court expects this information to be specific and detailed. The affidavit shall also include – the efforts already taken to provide the electronic data requested, i.e. where the data produced came from, who conducted the searches, and what types of searches were used. This information should be provided by the person or persons with personal knowledge. Second, Scepter shall prepare a written litigation hold for this case and distributed it to all appropriate employees, executives, and officers on or before January 10, 2011. A copy shall also be supplied to plaintiffs' counsel on or before January 10, 2011. Third, within a week following Mr. Miller's deposition, counsel are to meet and confer regarding search terms for the e-discovery. The parties should discuss and try to reach consensus on appropriate search terms and what efforts are remaining to conduct electronic discovery. Once search terms are agreed upon, Scepter shall conduct the electronic search. Scepter shall provide all the documents which are a match for the search terms except those documents that are protected by a privilege and/or those documents which are purely personal in nature and have no bearing on Scepter or the subject of gas cans. For documents protected by a privilege, Scepter shall provide a privilege log. For those documents, including electronically stored documents, that Scepter is to produce, Scepter shall organize them pursuant to Fed. R. Civ. P. 34(b)(2)(E)(i) which provides, “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” As to the form in which the electronically stored information is produced, the parties' attention is invited to Fed. R. Civ. P. 34(b)(2)(E)(ii) which states, “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fourth, the parties are to meet and confer regarding a written discovery plan. This written discovery plan must address e-discovery, depositions, expert witnesses and other discovery the parties believe to be pertinent to this case and shall be submitted to the Court by email at carter_chambers @tned.uscourts.gov no later than Wednesday, January 26, 2010. If the parties cannot reach consensus on all or part of the discovery plan, each shall submit his/its own plan as to the portions for which no agreement was reached. *4 Fifth, after receiving the discovery plan, the Court will schedule a status conference to consider whether any of the deadlines in the current scheduling order need to be amended. SO ORDERED. Footnotes [1] If a party has an objection to a discovery request for electronic data, that is another matter entirely. That party may make its objections promptly and the Court can address it if needed.