Motion to Compel Discovery Denied After Party States They Cannot Produce What They Do Not Have

In the case of Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Co-op, No. 15-6480 (E.D. Pa. June 29, 2020 Schiller, J.), the court addressed a Plaintiff’s Motion to Compel the Defendants to produce additional documents in this anti-trust litigation after the Defendant advised that they had made a thorough search and could not find any additional discoverable documents.

The court denied the Motion to Compel after finding that the court had been provided with additional information by the defense with regards to the search methodology completed by the Defendants to look for the information, which included research from their IT and sales department to seek out electronically stored information. The Defendants also advised that they requested former salespersons to search their historic files.

The Plaintiffs argued under the Federal Rules of Civil Procedure that the Defendants had failed to meet their obligations under Rule 34 and, as such, the Plaintiffs sought an Order compelling additional discovery.

In this matter, Judge Schiller stated that the burden was upon the Plaintiff to prove that the Defendant’s search was not reasonable. Significantly, the court held that the Plaintiff could not carry that burden by merely pointing to an absence of information. The Plaintiff’s Motion to Compel was therefore denied.

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 14, 2020).