In the case In re Diisocyanates Antitrust Litig., No. 18-1001 | MDL No. 2862 (W.D. Pa. Jan. 26, 2023), Pennsylvania District Judge W. Scott Hardy denied plaintiffs’ request for an order compelling production of all calendar items for approximately 45 custodians and text messages (after only a linear review) over five years, but did allow plaintiffs to submit follow-up discovery requests for calendars and text messages, as long as they were “specifically targeted and not generalized”.

Case Discussion

In this multidistrict litigation which involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), the plaintiffs sought an order compelling production of all calendar items for approximately 45 custodians and text messages (after only a linear review) from defendants BASF, WCA and Huntsman over a five-year period.

These calendars and text messages had already been subject to search term review and all three defendants had already completed their productions. Huntsman produced approximately 27,190 calendar entries (44,732 with families) and 1,542 text message transcripts[1] (1,803 with families), WCA produced 5,483 calendar entries (6,254 with families) and 3,453 text message transcripts consisting of 39,293 messages and BASF produced 19,717 calendar entry documents (inclusive of attachments) and 473 text message documents (inclusive of attachments).

However, the Plaintiffs contended that these document productions yielded by those Defendants’ search term review were inadequate and that production of text messages (after linear review) and full custodial calendars was necessary. The Defendants contended that their search term-generated productions were the result of agreements between the parties, that producing all remaining calendar entries and text messages irrespective of relevance and in contravention of the parties’ Stipulated ESI Protocol was beyond the permissible scope of discovery, and that seeking to compel full production of these documents long after conducting their agreed-upon search term review and production was untimely. Despite agreeing to search terms previously, the Plaintiffs had subsequently reversed their position concerning Defendants’ use of search terms.

Judge’s Ruling

Judge Hardy began his analysis by stating: “Plaintiffs contend that the Court should compel the full production of calendar entries and the production of text messages after a linear review because courts routinely order the full production of calendars without first applying search terms and because the search term review improperly risks excluding relevant evidence. The Court disagrees.” He also called the cases cited by Plaintiffs to support their position “unpersuasive”.

Judge Hardy also noted that “while it is true that the use of search terms is imperfect and may exclude some relevant documents, not using search terms when reviewing a voluminous universe of documents also risks expending time and resources to cull through and produce large amounts of irrelevant documents. Consequently, search term methodologies are routinely used, particularly in large and complex commercial and antitrust cases, as an acceptable if not preferred approach.”

Judge Hardy also noted: “Importantly, here, the parties previously agreed upon the Stipulated ESI Protocol which does not exclude calendar entries or text messages, and which requires that they ‘discuss and attempt to reach an agreement on search methodologies with the goal of limiting the scope of document collection, review for production,…and facilitating production in accordance with the deadlines set by the Court…with the goal of identifying responsive documents.’”

In denying Plaintiffs’ request for an order compelling production of all calendar items for approximately 45 custodians and text messages (after only a linear review) over five years, Judge Hardy stated: “It is plainly evident that the parties were not wholly in agreement as to the actual search terms to be utilized despite agreeing, generally, to the use of search terms. Within this context, the parties expressly contemplated that Plaintiffs would likely propound follow-up discovery requests. In the Court’s estimation, however, Plaintiffs have not demonstrated on the current record that Certain Defendants search terms or search methodologies pertaining to calendar entries or text messages are unreasonable or inadequate. Even so, the foregoing communications between Plaintiffs and WCA, as well as record evidence of correspondence between Plaintiffs and Huntsman and BASF, demonstrate that the parties contemplated Plaintiffs making follow-up discovery requests based upon their review of calendar entries and text messages identified and produced after Certain Defendants’ applied their search terms. Such targeted follow-up discovery requests for discernably relevant information, rather than the wholesale production of documents that will certainly yield significant amounts of irrelevant material, is more aptly proportional to the needs of this case.”

However, Judge Hardy also stated: “Accordingly, while the Court is not compelling Certain Defendants to undertake a linear review of voluminous text messages and to produce such text messages along with the full custodial calendar entries without application of their previously applied search terms, and while the Court is not directing Certain Defendants to re-review the full universe of documents through the lens of Plaintiffs’ proposed but rejected search terms, the Court does recognize that Plaintiffs may propound targeted follow-up discovery requests that seek to elicit relevant evidence that is proportional to the needs of the case. Such follow-up discovery requests should be non-cumulative, specifically targeted and not generalized, and be informed by the documents and other information produced to Plaintiffs thus far.”

So, what do you think? Could you see a scenario where a court could order production of all calendar items for and text messages (after only a linear review)? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s discussion of the case here!

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