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Margaret A. Benson, M.D v. Sanford Health

March 25, 2011

MARGARET A. BENSON, M.D.,
PLAINTIFF,
v.
SANFORD HEALTH, A SOUTH DAKOTA CORPORATION; AND SANFORD MEDICAL
CENTER, A SOUTH DAKOTA CORPORATION,
DEFENDANTS.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER

Pending is Margaret Benson's Fourth Motion To Compel.*fn1

BACKGROUND

After peeling three layers off this disputed discovery onion, one item remains, i.e. an e-mail Benson claims she sent.*fn2

Request No.7: Please provide a copy of any emails from Dr. Margaret Benson to Darla Landeen in approximately June of 2006.

Sanford responded:

Defendants object to this request as vague and ambiguous in its reference to time. Subject to, and without waiving that objection, defendants are searching to determine whether such email copies exist and may be retrieved.

Benson's justifies pursuing the e-mail because:

Dr. Benson contends that she sent an email to Landeen after the meeting and asked her about why Tiefenthaler felt he needed a man to replace her. This was the only email Dr. Benson ever sent on the Sanford email system and she testified that she had the receptionist at the Beresford Clinic help her with this because she is not savvy with technology. This is why it is important for the Plaintiff to have the Defendants produce a copy of this email. The subject matter of such an email is extremely important to her case.*fn3 Benson argues Sanford's response has been non-response.

Sanford argues:

Sanford's e-mail retention and document destruction policies provide that e-mails are destroyed on 90-day cycles. After the 90-day cycle, the e-mail may be retrieved from backup tapes for, at the longest, two months. After this time period, the data on the backup tapes is written over and not retrievable. Thus, e-mails on Sanford's computer network from June 2006 were not retrievable after December 2006 at the latest. The only possible way they could have been retrieved after that time was if someone had saved the e-mail in another fashion, e.g., printed off the e-mail and saved the printed document somewhere or downloaded the e-mail "off" Sanford's e-mail system. When Sanford responded to Plaintiff's request for production, no such e-mails existed on its computer network, but Sanford indicated it would continue to search for such e-mails from June 2006. This search has been carried to the extent it could be for any especially saved e-mails.*fn4

ANALYSIS

In briefing her fourth motion , Benson's counsel engages in counterproductive overstatement and half truth. Counsel were previously discouraged from using overstatement.*fn5 Benson paints a picture of her own "pure driven snow" innocence and Sanford's dastardly evasion. The picture is not accurate.*fn6

First Motion to Compel.

Benson's first motion to compel was about many discovery items, one of which was her Request For Production 7. Benson recalls that her first motion to compel was dismissed as moot "due to the fact" that it "dealt with Defendants' non-response."*fn7 The fact of the matter is that Benson failed to confer in good faith with Sanford's counsel to resolve the matter before she filed her motion to compel. The parties were directed to confer to try to resolve their discovery disputes. They were also ordered to file a statement setting forth the matters upon which they had been unable to agree, together with briefs explaining their ...

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