In Tradeshift, Inc. v. Buyerquest, Inc., No. 20-cv-01294-RS (TSH) (N.D. Cal. April 23, 2021), California Magistrate Judge Thomas S. Hixson denied the defendant’s motion to quash a subpoena that the plaintiff served on Google for dates of personal communications between the defendant CEO and a client at the heart of a breach of contract case and granted the plaintiff’s motion to compel the defendant to conduct a discovery request for personal emails of the CEO, to be conducted by defendant’s counsel.

Case Background

In this case involving claims by the plaintiff that the defendant, a subcontractor on a project to provide software and services to Smucker, secretly worked to convince Smucker to terminate the plaintiff’s contract and enter into a new contract with the defendant for 100% of the work, the plaintiff contended that defendant CEO Jack Mulloy was behind the interference scheme and that he had communications with Smucker’s Jason Barr, via their personal email accounts.  After initially objecting to a request by the plaintiff, the defendant stated that it had conducted a discovery request for personal emails in Mulloy’s gmail account and located only one responsive document, an October 22, 2019 email from Mulloy to Barr at the latter’s personal email address. Smucker took the same approach (initially objecting, then agreeing to search) and produced two December 12, 2019 emails, one from Mulloy to Barr and a reply from Barr to Mulloy (with both using their personal email addresses). 

As a result, the plaintiff served a subpoena on Google (which the defendant moved to quash) for non-content information sufficient to show the dates when Mulloy’s gmail account sent or received emails to or from Barr’s email accounts, including for emails that had been deleted.  The plaintiff also sought an order compelling the defendant to produce emails Mulloy sent or received from his personal email to Barr’s personal email, which would also require defendant’s counsel to review Mulloy’s personal emails for responsive documents.

Judge’s Ruling

In response to the defendant’s argument that the Google subpoena was duplicative, harassing, and disproportionate to the needs of the case, Judge Hixson stated: “The Court disagrees. The subpoena is duplicative of information that Tradeshift requested in this lawsuit, but it is not duplicative of the information it received from BuyerQuest. The purpose of the subpoena is to determine the gap between those two things. Far from harassing or disproportionate, the subpoena is narrowly tailored. It imposes no burden on BuyerQuest or Mulloy, and BuyerQuest has no standing to object to any burden on Google (and in any event, there is no indication that Google thinks the subpoena is burdensome).”

Judge Hixson also noted also that “Mulloy’s December 12 email to Barr (which was produced by Smucker in the New York action but not produced by BuyerQuest in this lawsuit) looks like a significant document. In that email, Mulloy trash talks Tradeshift to Barr and flat-out says his goal is to establish a direct relationship between BuyerQuest and Smucker. This is a highly relevant document, and it’s concerning that BuyerQuest did not produce that email.”  Continuing, he also said: “Under the circumstances, Tradeshift has reason to be concerned about the adequacy of BuyerQuest’s efforts to search Mulloy’s gmail account for responsive work-related emails. If you view the situation in the very worst light (and Tradeshift does), the fact that BuyerQuest’s CEO was using his personal email to trash talk Tradeshift and lobby Smucker to contract directly with BuyerQuest is itself suspicious and suggests an attempt to have communications that the lawyers won’t find during discovery.”  As a result, Judge Hixson denied the defendant’s motion to quash the subpoena.

Regarding the motion regarding the discovery request for personal emails in Mulloy’s gmail account with defendant’s counsel conducting the search, Judge Hixson stated: “BuyerQuest’s opposition is difficult to understand. BuyerQuest states that ‘[t]his dispute arises from Tradeshift’s refusal to take ‘yes’ for an answer.’ BuyerQuest continues: ‘After conferring, BuyerQuest agreed to voluntarily search Mr. Mulloy’s personal email for correspondence between him and Smucker’s Mr. Barr and produced the single email it located.’ Then BuyerQuest opposes the motion, arguing that it does not have possession, custody or control of Mulloy’s personal email and that the discovery sought is not proportional to the needs of the case. That doesn’t sound like BuyerQuest is offering ‘yes’ as an answer.”

Noting that “Rule 26(g) places not only on the parties but also specifically on counsel an obligation to certify that a document production is complete”, Judge Hixson agreed with the plaintiff that the defendant must have counsel review Mulloy’s emails for responsiveness and granted the plaintiff’s motion to compel the defendant to conduct a discovery request for personal emails of the CEO, to be conducted by defendant’s counsel.

So, what do you think?  Are you surprised that the court compelled the defendant to conduct a discovery request for personal emails of the defendant’s CEO or did the plaintiff provide ample justification for doing so?  Please share any comments you might have or if you’d like to know more about a particular topic.

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