Giroir v. The Dow Chemical Company, No. 25-452-SDJ (M.D. La. Aug. 17, 2026), full opinion (PDF)
A plaintiff asked his former employer whether it had issued a litigation hold covering his ESI and workstation, whether the machine was preserved or imaged, and whether anything on it had been lost. The Dow Chemical Company would not answer. Opposing the motion to compel, it argued that a party is not entitled to discovery into its litigation preservation efforts. Magistrate Judge Scott D. Johnson granted the motion. Giroir was not seeking discovery on discovery, in the court's view, because he was asking about actions Dow took or did not take rather than challenging the adequacy of Dow's search.
What Happened
Kevin Giroir, proceeding pro se, moved to compel answers to four questions about his ESI and the workstation he had used at Dow. He wanted to know whether a litigation hold issued and when, whether the machine was preserved or forensically imaged, and whether any data on it had been "deleted, altered, reassigned, wiped, or otherwise lost since the duty to preserve arose."
Dow argued that the motion failed the district's local rule, which requires a motion to quote each discovery request verbatim, followed by the verbatim response or objection. The court rejected that objection because Giroir had attached an email setting the requests out verbatim, adding that this was information he had repeatedly sought and Dow had repeatedly refused to provide. Citing the discretion a trial court holds over the scope of discovery, the court said it would instruct Dow to respond fully and completely.
The Court's Analysis
Dow's second argument was that Giroir had no entitlement to discovery into its litigation preservation efforts. It rested on VeroBlue Farms USA Inc. v. Wulf, which the court described as reiterating a general principle that "it is not the court's role to dictate how a party should search for relevant information absent a showing that the party has abdicated its responsibility". In the passage the court quoted, that principle rests on each party meeting its discovery obligations without direction from the court or opposing counsel. It rests as well on avoiding discovery on discovery unless a specific deficiency is shown in a party's production.
The court called VeroBlue inapposite because Giroir's motion did not attack Dow's production. He was not arguing, for example, that Dow had failed to conduct a thorough search of documents for the information he requested. In the court's description he was simply asking whether his workstation was preserved. The court described the request as one that "does not pertain to a deficiency in Defendant's discovery responses; it is simply a request for information about actions taken (or not taken) by Defendant relating to the termination of Plaintiff's employment." Dow had advanced no valid argument for withholding it, the court concluded.
In a footnote the court took up Dow's argument that the issue had already been decided against Giroir. Giroir had raised the same failure to preserve in earlier motions for sanctions, Dow said, the court had denied that motion on conclusory allegations, and he had identified no discovery request Dow failed to answer. The court disagreed, stating that its earlier ruling had found no grounds for sanctions. That motion had sought sanctions rather than an order compelling answers. Giroir "has clearly identified the information being sought", the court added, so it was time Dow provided it. The order gave Dow 14 days to respond in full.
Why It Matters
Dow's objection meets a charge that a party searched inadequately. It has nothing to say about whether a particular device was imaged or wiped. Under the principle Dow invoked, a party who wants discovery into the adequacy of another side's search must first show a specific deficiency in the production. A request for the history of a machine is not that charge, so no such showing is called for.
Dow had refused this information more than once before the motion arrived, the court noted. Its position in opposition was that discovery does not reach a party's own preservation efforts. The court saw no attack on the adequacy of Dow's production. That is what the objection exists to meet. A responding party invoking it should be ready to identify the attack it is meeting.
Giroir's earlier filings failed as requests for sanctions. The footnote treats a motion to compel as a different request calling for a different ruling, so the one does not stand in for the other. A party who suspects ESI has been lost but cannot yet prove it can work in that order. Ask whether a hold issued, whether the workstation was imaged, and what happened to the data on it. The sanctions motion, if what comes back supports one, follows.
The full opinion is available as a PDF.
