The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
Reino de Espana ("Spain") brings this action, arising from the casualty of the Prestige off the coast of Spain on November 19, 2002, against American Bureau of Shipping, ABS Group of Companies, Inc., and ABS Consulting, Inc. (collectively, "ABS"). Pending before the Court is ABS's motion to compel Spain's disclosure of records: 1) concerning email communications from the period November 12, 2002, to November 20, 2002 (the "casualty period"); and 2) prepared by the Permanent Commission for the Investigation of Maritime Accidents (the "Permanent Commission"). Spain maintains that the pending motion should be denied because the electronic records ABS seeks simply do not exist, and that records from the Permanent Commission are privileged. For the reasons which follow ABS's motion to compel is GRANTED.
ABS served Spain with a document request dated January 6, 2004 ("first document request") seeking records about the handling of the Prestige casualty, and specifically requesting that email communications and other electronic records be produced as part of Spain's response.
Spain did not object to the production of electronic records, and disclosed some responsive documents.
On July 16, 2004, ABS notified Spain that its discovery production was deficient, and clarified that it sought electronic records from approximately thirteen different government ministries. On August 6, 2004, Spain objected to ABS's clarification as overbroad and unduly burdensome, and maintained that it had already produced all non-privileged responsive records. Nevertheless, ABS renewed its request for responsive emails and electronic records on August 31, 2004. At that time, Spain represented that it would ensure that all non-privileged responsive records were produced.
On January 3, 2005, ABS narrowed its discovery request by asking Spain to limit its search of responsive emails and electronic records to approximately ninety-eight names and fifteen government email addresses. Spain rejected this request on the grounds that it constituted a fishing expedition, and that the computers of government officials are subject to Spanish privacy laws and government privileges, and cannot be searched without the individual user's consent.
Spain's production comprised sixty-two emails. ABS contends that the production of only sixty-two emails is plainly deficient and suspect, especially in light of what appears to be well-developed email systems in government ministries and deposition testimony indicating that email was used extensively as a work and communication tool. It argues that the lack of responsive records is the result of Spain's destruction of evidence or failure to preserve evidence. For its part, Spain maintains that it has fully complied with its discovery obligations and continuously supplemented its discovery production. For instance, on January 20, 2006, it disclosed approximately three hundred additional emails. ABS claims that the January 20 production is an example of Spain's inadequate response to its discovery requests because only nine emails were within the casualty period.
On January 31, 2006, ABS made a number of inquiries to Spain concerning the extent of its search for responsive records, and asked it to provide a list of all responsive emails that have not been disclosed, and the basis for their withholding. Spain failed to provide a meaningful response, except to state that all responsive non-privileged emails that were located had been produced.
After reviewing the parties submissions, the Court found that a determination could not be made on the pending motion based solely on the parties written submissions and affidavits, and that an evidentiary hearing was necessary to determine the availability, if any, of additional electronic records, and to resolve material factual disputes concerning Spain's email systems and use of email. Spain moved to limit the scope of the hearing to the technical nature of its email systems and use of email, arguing that issues related to the preservation or destruction of email should not be addressed. The Court directed the parties to be prepared to address all issues surrounding the pending motion. The evidentiary hearing was held on February 9-10, 2006. Both parties presented expert witnesses who testified about Spain's email systems and the availability of electronic records. Spain also presented three government officials who testify as to their particular agency's email system and its use of email.
ABS's motion to compel asserts that Spain is withholding records on the basis of Spanish privacy laws and government privileges. Spain contends that it has already produced responsive records to ABS's broad discovery requests, that privacy concerns militate against additional email and computer searches and that the Permanent Commission records are privileged.