On Wednesday, January 22, a panel of Part E will hear oral argument in Atlantic ER Physicians Team Pediatrics Associates, P.A. v. UnitedHealth Group, Inc. The issue is one involving discovery of electronically stored information (“ESI”). In the 21st century, ESI has become a fixture in complex litigation, and sometimes in non-complex cases as well.

This was a contentious case, and the parties’ affiliates had sparred in other matters about alleged attempts to hide documents from production by claiming they were irrelevant. In this case, the Law Division entered an Order that the parties negotiate ESI search terms that would, as well as possible, result in only relevant materials being identified for production, and that there would be no opportunity for producing parties to review the search term results for relevancy. Some irrelevant materials might end up being produced, but the Law Division found that acceptable in the context of its effort to avoid improper withholding of ESI.

Defendants sought leave to appeal, which the Appellate Division denied. But when defendants went to the Supreme Court, the Justices granted leave and remanded the matter to the Appellate Division.

Defendants assert that depriving parties that produce ESI of the ability to screen the production was an abuse of discretion. Several amici for defendants have agreed, and they have argued that production of irrelevant ESI materials is not harmless in an age where bad actors may be able to access those materials. Plaintiffs, on the other hand, contend that production of irrelevant materials in discovery is not unusual or problematic, that the Law Division balanced the interest in having producing parties not withhold ESI on the basis of questionable claims of irrelevancy against the potential that some irrelevant ESI would be produced, and that the Law Division did not abuse its discretion in its ruling.

The briefs, totaling over 350 pages, are available here. The oral argument can be viewed at this link.