In Li v. Merck & Co., No. 23-cv-03347-JSW (TSH) (N.D. Cal. Feb. 7, 2025), California Magistrate Judge Thomas S. Hixson, among other rulings, ordered both the defendants and plaintiff to “file 200 to 300 pages” of documents in the form produced by the other side that illustrated the problems each party saw in the opposition’s document production.

Case Discussion and Judge’s Ruling

In this case, Defendants argued that Plaintiff produced documents in an improper fashion, such as “PDF files that are hundreds of pages long, in which documents are randomly thrown together with no organization,” and that documents were not produced in a usable form, such as lacking metadata, dates, and sender and recipient information. Defendants stated that this was a pervasive problem in Plaintiff’s document production. Plaintiff denied Defendant’s contention and said that “Plaintiff’s counsel followed their usual practice which is to produce documents in text-searchable PDF format.”

Defendants also provided some examples of the problems they saw, including a 10-page PDF file that was a collection of random documents thrown together, the last two of which referenced attachments that were missing. They also provided examples of two emails where the text was cut off on the right hand side and the dates of the emails were missing as examples of improperly produced documents.

Judge Hixson stated: “The remedy Defendants seek is for the Court to basically order Plaintiff to redo her document production, including collecting and imaging her devices and accounts. While the Court does not want to review Plaintiff’s entire document production, the Court would like to see a demonstration that the problems Defendants have identified are pervasive and that the issue is not just a couple of unfortunate examples. Accordingly, the Court ORDERS Defendants to file 200 to 300 pages of Plaintiff’s produced documents, in the form produced by Plaintiff, that illustrate the problems Defendants see in her document production. Defendants shall file these documents within seven days.”

On the other hand, Plaintiff stated that Defendants produced documents neither labeled to correspond to her RFPs, nor as they are kept in the ordinary course of business. Plaintiff said that Defendants produced PDF files that contain multiple unrelated documents. Defendants denied this, saying they produced documents as they are kept in the ordinary course of business and that they did not group unrelated documents into the same PDF file.

Judge Hixson stated: “Plaintiff does not provide any examples of the problems she says exist. The Court ORDERS Plaintiff to file 200 to 300 pages of Defendants’ produced documents, in the form produced by Defendants, that illustrate the problems Plaintiff sees in their document production. Plaintiff shall file these documents within seven days.”

Judge Hixson also ruled on whether Plaintiff’s responses to Requests for Admission (RFA) 17 and 18 (which sought to get Plaintiff to admit that she “contemplated litigation against your employer as of December 12, 2022” and “anticipated litigation against your employer as of December 12, 2022”) were evasive, with improper hedges and caveats. Plaintiff stated these responses were accurate, saying she is a first generation immigrant who was entirely unfamiliar with her rights and that she sought legal consultation in an effort to understand her rights and that she did not actually contemplate or anticipate litigation until March 10, 2023, the day after she was terminated.

Judge Hixson stated: “Defendants do not cite any legal authority for the proposition that looking for a lawyer to consult with to find out what one’s rights are is necessarily the same thing as contemplating or anticipating litigation. Further, as a matter of common sense, some people might find the idea of suing their current employer completely unpalatable. The Court can’t say that it is unrealistic for Plaintiff to claim that she did not contemplate or anticipate litigation until the day after her termination. Accordingly, the Court is unable to conclude that these RFA responses are evasive and DENIES Defendants’ motion on this issue.”

Judge Hixson also ordered Plaintiff to submit 17 documents on Plaintiff’s privilege log (which Defendant contended included non-lawyer “third parties”, identified as Plaintiff’s daughter) to the Court for in camera review.

Hat tip to Michael Berman for the original coverage of this case!

So, what do you think? Are you surprised the Court ordered both parties to file 200 to 300 pages of the other side’s production, plus 17 documents for court review? Please share any comments you might have or if you’d like to know more about a particular topic.

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