In Simon & Simon, PC v. Align Tech., Inc., No. 20-cv-03754-VC (TSH) and No. 21-cv-03269-VC (TSH) (N.D. Cal. July 1, 2022), California Magistrate Judge Thomas S. Hixson granted the plaintiffs’ motion to compel and ordered the defendant to re-run search strings it had previously performed, but without geographic limiters on searches.
In this case where the plaintiffs sued the defendant for monopolizing the markets for aligners and scanners and violated sections 1 and 2 of the Sherman Act with respect to the market for aligners, for most of the search strings it agreed to run, the defendant (an international company) included geographic limiters in the string, such as “/25 (‘USA’ or U.S.A. or ‘US’ or U.S. or ‘United States’ or ‘North America’ or America* or ‘NA’).” An email that hit on any other term in the search string would be reviewed only if it also had one of the geographic limiters in it.
The plaintiffs agreed to the use of geographic limiters on searches, reserving their right to challenge them later, because the defendant assured them that its employee email signatures typically contain one or more of the geographic limiters at issue. However, from a review of the documents that the defendant had produced to date, the plaintiffs asserted that defendant employee emails “almost always have either no signature at all or signatures without geographic limiters,” and the plaintiffs provided a few examples of that, also asserting that the problem is widespread among Align’s custodians at all levels of the company.
The defendant emphasized that “the inclusion of geographic terms to focus search strings on the United States (the only relevant geography here) is critical for identifying documents that specifically discuss the United States as opposed to exclusively discussing other regions and geographies.” The defendant also added that “[d]espite the limited relevance of signature blocks to the propriety of the geographic limiters … Align does in fact frequently use geographic terms in email signatures” and asserted that the use of signature blocks was “sufficiently widespread” to address Plaintiffs’ concerns, while acknowledging that “this usage is not universal.”
Judge Hixson stated: “Because Align is an international business, it has a legitimate reason to limit document review to documents that are likely to be evidence of conduct in the United States. The most common way of doing this is by choosing custodians whose work involves the U.S. market, but that’s not necessarily the only way.”
But Judge Hixson also stated: “Are the geographic limiters a good way of identifying documents that are relevant to U.S. conduct as opposed to conduct abroad? The answer is no. When U.S. employees email each other about conduct that is relevant to this case, there is no reason to expect they would explicitly refer to the U.S. in their emails. That’s just not how people write. They might refer to the U.S. if, for example, they mean to distinguish the U.S. from elsewhere or if they are talking about a document that has ‘U.S.’ in the title. But in general, when people within the same country email each other, they don’t normally put the name of the country they’re in in the email. People say things like: ‘Hey, team. Have you seen the recent analysis of our Invisalign sales? Great job, everyone!’ They don’t usually say things like: ‘Hey, fellow U.S.-based employees. Have you seen the recent analysis of our Invisalign sales? Great job, Americans!’”
After imagining a couple of hypothetical “smoking gun” emails, Judge Hixson added: “The point is not these two hypothetical emails, which the Court dreamed up. The point is the more basic one that when Americans email each other about things that are happening in this country, they don’t usually put the word ‘America’ or ‘United States,’ or some other variant of that, in the email. As a result, the geographic limiters are a random, arbitrary limit on discovery, unrelated to whether documents are relevant to the case…Accordingly, the geographic limiters cannot be understood as even a rational attempt to target document collection to conduct that occurred in the U.S.”
Judge Hixson also rejected the defendant’s argument that the plaintiffs were attempting to reopen settled search terms, stating: “Align does not demonstrate that the search terms were settled, at least not with these Plaintiffs”, noting that for at least three months the plaintiffs had been objecting to the use of geographic limiters on searches. He also rejected the defendant’s argument that it had produced more than 250,000 documents and millions of lines of data, and that the plaintiffs’ demand would require the defendant to review an additional 570,000 documents as a rationale for geographic limiters on searches, stating: “Volume is not an excuse for arbitrary search parameters. The requirement that a document had to explicitly reference the United States in the text of the document before it would hit on a search string is a random limit on discovery. It was not a rational way to attempt to limit discovery to U.S.-based conduct, for the reasons explained above.”
He also rejected the defendant’s offer to remove geographic limiters on selected searches and rejected the defendant’s argument that exclusion of geographic limiters on searches would make them too broad in granting the plaintiffs’ motion to compel.
So, what do you think? Is there any reasonable argument that can be made for geographic limiters on searches…ever? Please share any comments you might have or if you’d like to know more about a particular topic.
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