In ImprimisRx, LLC v. OSRX, Inc., No.: 21-cv-1305-BAS-DDL (S.D. Cal. Dec. 19, 2022), California Magistrate Judge David D. Leshner, finding no deficiency in Plaintiff’s production of emails, denied Defendants’ motion to compel Plaintiff to produce the search terms it used to locate those emails.
In this case involving claims of false advertising, trademark infringement, common law unfair competition, copyright infringement and more, Defendants sought an order compelling Plaintiff to disclose the sources, methodology and search terms used to collect emails and other documents from Plaintiff’s president, John Saharek, responsive to Defendants’ requests for production. Their instant motion was based on Saharek’s deposition testimony that, although he expected to be notified if any documents, emails, or electronically stored information (“ESI”) in his possession were collected from him in connection with the case, he was unaware of any such collection.
Plaintiff opposed the Motion on the grounds that it considered Defendants’ document requests, collected Saharek’s emails, and properly searched for responsive documents, and that no deficiency in Plaintiff’s production was demonstrated by Defendants.
Judge Leshner began his analysis by noting: “Unfortunately, it is apparent that the parties did not engage in a fulsome meet and confer regarding the ESI Checklist items, including relevant search terms, at the outset of this case. Plaintiff’s opposition attaches correspondence between the parties regarding search terms that appears to post-date Plaintiff’s document production…And at a discovery conference on December 16, 2022, concerning another discovery dispute in this case, counsel for both parties affirmed that they did not meet and confer regarding search terms prior to propounding discovery or producing documents. That failure to meet and confer regarding search terms that Plaintiff would use to locate responsive documents, including emails, in its repository of approximately 2 million documents likely resulted in otherwise avoidable litigation.”
Regarding discovery of search terms used by Plaintiff, Judge Leshner stated: “’Discovery into another party’s discovery process is disfavored,’ and ‘requests for such ‘meta-discovery’ should be closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.’…’Generally, courts will only permit such discovery where there is some indication that a party’s discovery has been insufficient or deficient.’”
While noting that “In certain instances, courts have ordered parties to engage in meet and confer efforts, including disclosure of proposed search terms, before the search process begins”, Judge Leshner also noted that “The analysis changes where a party seeks post-production disclosure of search terms used by the opposing party to identify responsive documents.”
With that in mind, Judge Leshner stated: “Here, Defendants fail to show a deficiency in Plaintiff’s collection, review, and production of documents in Saharek’s possession. Saharek’s deposition testimony that he was not aware his emails were collected does not contradict Plaintiff’s assertion that it collected Saharek’s emails and produced responsive, non-privileged emails. Additionally, Plaintiff has provided a declaration of its IT Director, Garrett Scarborough, who declares that, although he did not personally discuss the email collection with Saharek, he directly supervised and had knowledge of actions taken by the company’s former Network Security Supervisor to collect Saharek’s emails, which were discussed with Plaintiff’s in-house counsel and subsequently transferred to Plaintiff’s counsel.”
Finding no deficiency in Plaintiff’s production, Judge Leshner stated: “Defendants have not shown that Plaintiff’s collection and production of Saharek’s emails was ‘insufficient or deficient.’…As such, the Court will not compel Plaintiff to produce the search terms it used to locate Saharek’s emails that were responsive to Defendants’ requests for production.”
So, what do you think? Should parties be only forced to disclose search terms when there is a demonstrated discovery deficiency? Please share any comments you might have or if you’d like to know more about a particular topic.
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