In Maggette, et. al. v. BL Development Corp., et. al., 2009 U.S. Dist. Lexis 116789 (N.D. Miss. Nov. 24, 2009), Magistrate Judge S. Allan Alexander denied plaintiffs' motion for sanctions, but ordered the parties to select a neutral third-party expert in the field of electronic discovery with knowledge of the gaming industry to determine whether defendants met the standards for preservation of electronic evidence and disclosed all relevant evidence.

This case involved alleged wrongdoing in connection with defendants' casino operations, plaintiffs moved for sanctions against defendants for failing to search for, and produce, relevant electronically stored information ("ESI").  The court declined to award sanctions, but was dissatisfied with defendants' discovery responses and production of documents.  In response, defendants stated that they searched for responsive documents and ESI, but defendants were unable to describe in detail the databases searched, the search terms, methods or parameters used so search the databases or provide any expert information confirming the absence of responsive documents.  Defendants were also at a loss to describe numerous discrepancies within their discovery responses and the deposition testimony of their employees. 

The court was also dissatisfied that the defendants did not have paper files, ESI or even backup measures and files for at least some of the information requested by plaintiffs. The court was skeptical noting that in light of the rule amendments, a lackadaisical approach to preservation and production of electronic documents is "simply unacceptable."  Since the court could not determine whether the defendants had legitimately fulfilled their discovery obligations, the court declined to rule on plaintiffs' motions until the court could determine if defendants had satisfied their obligations related to the standards for preservation of electronic evidence and disclosure of all relevant evidence.  The court ruled that such a determination would need to be made with the assistance of a neutral third-party expert in the field of electronic discovery and who has knowledge of the gaming industry.  Accordingly, the parties were to agree upon an expert to determine the legitimacy of defendants' ESI searches to date or whether defendants have made a good faith attempt to use preservation techniques reasonably available to them.  The costs of the expert were to be borne by defendants.