Buergofol GmbH v. Omega Liner Co., No. 4:22-cv-04112-KES, D.S.D. (July 29, 2026), full opinion (PDF)
A producing party that tells the court its data cannot be loaded into an e-discovery platform is asserting a fact it has to be ready to prove. Buergofol GmbH argued for a year that its German email system made the District of South Dakota's ESI Order impossible to satisfy. On July 29 Judge Karen E. Schreier found that Buergofol had built the impossibility itself, by switching off the search features that would have let it comply. She dismissed its patent infringement claims with prejudice.
The order rests on several grounds, fabricated evidence and spoliation among them. The ESI holdings deserve separate attention, because they mark the line between a technical constraint a party encounters and one it builds.
What Happened
The court entered the ESI Order after finding Buergofol repeatedly evasive and non-responsive in answering Omega Liner Company's discovery requests. Section III.1 required Buergofol to load the email accounts of 19 listed custodians into an e-discovery platform and return hit reports on Omega's search queries. Section III.3 imposed the same platform requirement on Buergofol's unstructured data repositories, a category that swept in both its file system and its Tobit David email server.
Buergofol complied with neither. Its mail ran on Tobit David, a German system that stores messages in a proprietary compressed format. Buergofol maintained that its custodians' mail could not be exported in bulk into an e-discovery platform. For its file system, which held roughly 1.5 TB, it hired an IT consultant to write a custom search program and relied on native Microsoft Windows search. Omega's motion described the queries Buergofol did run as stripped of Boolean connectors and wildcard characters, each reduced to a single word of Buergofol's choosing.
Omega answered with expert declarations showing that the Tobit data could be exported using IMAP synchronization together with BitRecover, MailStore, and Microsoft Outlook. Its expert also established that Tobit David ships with a full-text search supporting Boolean operators and wildcards, and that this search runs by default. The older conventional search Buergofol described lacks those operators, runs far slower, and stays off unless a user activates it. Buergofol's own expert later exported a subfolder of a custodian's mail using one of Omega's methods.
The Court's Analysis
Dismissal under Rule 37(b) requires an order compelling discovery, a willful violation of it, and prejudice to the other party. Willfulness was the contested element. The evidence about how Buergofol had configured Tobit David settled that question.
To produce the conditions it described, Buergofol would have had to deactivate the search function offering Boolean and wildcard capability and activate the slower one that lacks them. The court found that those self-imposed technical limitations demonstrated a willingness to violate the ESI Order. It concluded that Buergofol had "created specific circumstances to find ways to purposefully avoid complying with the ESI Order's e-discovery requirement". Sanctions under Rule 41(b) followed on the same reasoning.
Buergofol also answered each of Omega's proposed methods of compliance with a new reason that compliance was impossible. The court treated the sequence as evidence of intent.
The file system ruling is the cleanest holding for practitioners. Custom programming and native Windows searching, the court held, "are not equivalent to searching on an e-discovery platform". The shortfall was concrete. Buergofol's file system held technical and sales documents saved as Word files, PDFs, spreadsheets, and images. Some of those files have to be indexed through an e-discovery platform before a search will reach them.
On query syntax, the court held that Buergofol had to run Omega's queries as provided, Boolean connectors and wildcards included. The absence of those words from the ESI Order did not put them outside its contemplation, because a search query in this field ordinarily carries that logic.
Buergofol prevailed on one point. Its failure to search email under Section III.3 was not willful, the court held, because it had moved to amend that provision and the court had not yet ruled on the motion. The court granted that motion in part and amended Section III.3 so that it no longer reaches email searching.
Why It Matters
Object while the protocol is being negotiated, and object on the ground you actually have. Buergofol's only objection when the ESI Order was under consideration was cost. Its evidence of impossibility arrived only once Omega started offering solutions, and the timing worked against it.
Impossibility is a burden of proof, not an assertion. A party claiming its systems cannot do what a protocol requires should expect an opposing expert to examine the system's capabilities and its configuration. Get a vendor assessment of the system before asserting that it cannot comply.
A pending motion to amend protects the provision it addresses and nothing further. The motion excused Buergofol's email searching under Section III.3. Every other obligation in the ESI Order stayed enforceable.
The full opinion is available as a PDF.
