Whatever the truth was, Energy Brands counsel issued orders to search for and preserve emails related to plaintiff. Beginning with an internal search and ending with a third-party vendor to de-dup results, the grand total was the 5 DVDs encompassing a 6-year span of emails related to Kay Beer. This was a far cry from Energy Brand's original assertion that it had few emails relating to Kay Beer.
Understandably Kay Beer made a motion to compel DVD production so they could review the emails. The judge however ruled that since only a single claim remained - he had already ruled in favor of Energy Brands on the rest - an expensive eDiscovery review was not proportional to the remaining claim.
The moral of the story? Energy Brand dodged a bullet. The company's counsel and their IT department were apparently operating at cross purposes and the result could have been devastating for Energy Brands.
Don't depend on finding a judge who has already made a majority of rulings in your favor and then figure out that you didn't do proper eDiscovery. Not a good plan at all. It could have gone far differently then it did for Energy Brands.
Make sure that counsel and IT talk to each other early on. This is a sea change in the way that corporate legal departments traditionally approached eDiscovery, but it must be done.