Sometimes a discovery molehill turns into a mountain (of documents) quicker than you can type the word warehouse.

Back in January, in North Carolina ex rel. Stein v. EIDP, Inc., the State raised a discovery dispute regarding the defendants’ reluctance to search the files of additional custodians in a long-running litigation arising from alleged contamination at the Fayetteville Works chemical manufacturing plant. This case, and others, centered on alleged discharge of per- and polyfluoroalkyl (“PFAS”) from the Fayetteville facility into the Cape Fear River. We wrote earlier about the Business Court’s refusal to bar the State from pursuing recovery based on a consent order that had resolved a different PFAS suit brought by the Department of Environmental Quality in 2017.

Here, the defendants had produced responsive documents previously gathered in other PFAS litigations, but the State wanted a new search of select custodians. The Court-appointed Discovery Referee, former Superior Court Judge Anderson Cromer, agreed in a March 27, 2024 order (¶ 5):

“While Defendants have reproduced documents collected for other litigations, Plaintiff is entitled to have Defendants conduct a separate and thorough search for documents responsive to its discovery requests.”

The scuffle over whether to search 16 custodians identified by the State for responsive records turned out to be the mole hill. The mountain turned out to be a records facility that houses more than 100,000 boxes of documents: Iron Mountain. Defendants had records at Iron Mountain and received a one-month extension to retrieve, review and produce documents from the designated custodians. (July 29, 2024 Order, ¶ 2).

But the “mountain” had other tales to tell.  “At subsequent hearings and meet and confers,” defendant EIDP, Inc. advised it had learned Iron Mountain had an “electronic searchable index” that could track boxes and records stored there by an extensive list of identifying factors.  Referee Cromer noted the problem (Id. ¶¶ 3-4):

“The upshot of EIDP’s revelation is that the Iron Mountain repository of hard copies may contain documents responsive to State’s discovery requests, which were served in June 2023.”

Noting that the dispute over providing records for additional custodians had blossomed into questions about whether prior requests for production were complete, the Referee found “that EIDP has not provided reasonable assurances that it has adequately reviewed the documents from Iron Mountain to determine if the repository contains documents, not previously reviewed and produced, responsive to all of the State’s” prior requests. Id. ¶ 5.

The Referee deemed insufficient EIDP’s production to the State of “a limited excerpt” of the Iron Mountain index that provided information about 20 boxes. The problem he identified was that the index only provided information regarding the search for additional custodians but did not “represent the boxes that may contain documents responsive to the State’s [earlier] discovery requests.” Id. ¶ 7.

Referee Cromer ordered aggressive relief designed to downsize the discovery mountain, including swift production of responsive records from the additional custodians, disclosure of a full index of the initial 20 boxes, and a protocol for arriving at the search terms EIDP would use to search the remaining, vast bulk of Iron Mountain records for responsive documents.

Worth Noting

• While it’s the stuff of legend for us older litigators to tell tales of reviewing boxes in warehouses with poor heat and dim lighting, the digitization of indices – and often underlying records – has changed the calculus for defining the scope and manner of searches of large document collections.

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP.