In Kilpatrick v. Breg, Inc., 2009 U.S. Dist. LEXIS 52723 (S.D. Fla. June 22, 2009), U.S. Magistrate Judge Andrea M. Simonton denied plaintiff's motion for reconsideration, but granted, in part, plaintiff's motion to compel and gave plaintiff the option to search defendant's backup tapes provided plaintiff pay the cost.

This case involved plaintiff's allegation that defendant manufactured a pain pump that was inserted into plaintiff's shoulder joint and, allegedly caused plaintiff to suffer a degenerative cartilage condition known as chondrolysis. In discovery, defendant filed a motion to compel discovery that went unopposed and unanswered.  The court granted the motion and, in doing so, deemed admitted certain of defendant's requests for admission.  Plaintiff sought reconsideration of the ruling citing his counsel's excusable neglect.  The court granted the motion for reconsideration, in part, thereby denying the admission as to only one of the RFAs.

Plaintiff also filed a motion to compel further discovery arguing that defendant's production of electronic discovery was incomplete.  One key issue in the litigation was whether defendant had knowledge prior to plaintiff's surgery in October 2004 that the use of its pain pumps could cause chondrolysis.  Although defendant's employees testified that they were unaware of the connection until early 2006, plaintiff uncovered emails and memoranda from defendant's employees discussing the topic in late 2005.  Plaintiff sought to have defendant search for additional emails, including those located on backup tapes.

The court agreed that defendant may not have produced all responsive documents, but also faulted plaintiff for waiting so long to raise the issue.  Thus, the court endeavored to balance the potential relevance of the electronic discovery with the burden and cost of producing them on the eve of trial, particularly in light of the fact that neither party had hired an electronic discovery vendor.  The court ruled that plaintiff could search up to five backup tapes for emails related to seven of defendant's employees.  However, the search must be conducted using a limited amount of search terms, including the word "chondrolysis" and the results turned over for defendant's review.  The court also ordered the search be subject to a confidentiality agreement to protect defendant's confidential information contained on the back up tapes.