In the In re Tecfidera Antitrust Litigation, No. 24 CV 7387 (N.D. Ill. Sept. 25, 2025), Illinois Magistrate Judge Young B. Kim, stating: “the court sides with Plaintiffs”, granted plaintiffs’ motion to enter a proposed ESI protocol that required production of non-inclusive emails over defendant’s motion to enter a proposed ESI protocol that did not.

Case Discussion and Judge’s Ruling

In this antitrust class action, the parties negotiated an ESI protocol. The parties reached an agreement on all issues except one: email threading. This led to cross-motions for the entry of their respective proposed ESI protocols. Defendant argued for an ESI protocol that would allow it to suppress non-inclusive emails. This would reduce the volume of documents to review and produce, thereby lowering hosting costs and increasing the speed of completion. Defendant asserted this was an “industry-standard process” that would provide Plaintiffs with “all substantive information.”

Plaintiffs opposed email threading, arguing that suppressing non-inclusive emails results in the loss of their associated metadata (e.g., precise send/receive times, recipients). This loss, they contended, would render their “organizational and data visualization tools” non-functional, hindering searchability and forcing them to rely on less efficient manual text searches. They argued this violated the requirement under FRCP 34(b) for ESI to be produced in a “reasonably usable form.”

Defendant offered to write a script that would generate a new field populated with metadata relating to the participants and dates of non-inclusive emails, but Plaintiffs argue this new field would not include all metadata and would still prevent their use of data visualization tools, thereby preventing the ease of searchability that would be available if the emails were presented in their native form.

While both parties provided case law rulings to support their decisions, Judge Kim stated: “from this court’s perspective there is no binding precedent in the Seventh Circuit regarding this issue.”

Considering the usability of the produced data, Judge Kim stated: “the court sides with Plaintiffs. First, Plaintiffs have requested production of the emails ‘as they are ordinarily maintained,’ which is the clearest default form of production set forth in Rule 34…But Defendant proposes producing ESI in a form that deviates from the Rule 34 norm, from Plaintiffs’ request, and without demonstrating that its proposed alternative is “reasonably usable” as required…This is insufficient to justify setting aside Plaintiffs’ proposal, which indisputably complies with the Rule. Indeed, while Defendant argues that email threading does not alter content or metadata, the fact that Defendant must program an additional field to capture the metadata at issue supports Plaintiffs’ argument that withholding non-inclusive emails results in a loss of metadata…The fact that the metadata Plaintiffs seek can be provided in an additional field does not make it equivalent in terms of searchability and usability. Furthermore,…here Plaintiffs have articulated a specific need (albeit barely) for the lost metadata in its ordinary form… Defendant argued that Plaintiffs have not provided details to substantiate their claim that email threading would obstruct searchability, but this assertion incorrectly places the burden on Plaintiffs.”

Considering proportionality, Judge Kim, citing a declaration from a defendant expert which attested that without email threading, Defendant “will incur increased costs” in hosting, review, and production stated: “The court agrees with Plaintiffs on this point. Defendant provides no analysis of the proportionality factors in Rule 26(b)(1) beyond unspecified claims of substantial burden that the potential scope of discovery will exacerbate…Riley’s testimony that threading ‘can materially reduce the number of documents for review … result[ing] in lower document hosting costs and quicker completion’ lacks sufficient specificity to assess Defendant’s alleged burden…Likewise, that the lack of threading ‘can result in higher hosting costs’ is devoid of both specificity and certainty…Nonspecific or speculative claims are insufficient for the court to weigh Defendant’s burden against the remaining proportionality factors in Rule 26(b)(1)…Moreover, Defendant’s discussion of the vast scope of litigation and discovery cuts against its argument by incorrectly suggesting ‘the importance of the issues at stake’ reduces its burden.”

In granting plaintiffs’ motion and denying defendant’s motion without prejudice, Judge Kim stated: “It is possible that if given more evidence of a specific substantial burden Defendant would incur—such as reasonable estimates of increased review time or financial projections reflecting significant increased hosting costs—the court may find Defendant’s burden outweighs the benefit Plaintiffs expect from availability of the additional metadata… But as it stands now, Defendant fails to meet its burden to show that its objection on grounds of proportionality.”

So, what do you think? Are you surprised that the court sides with Plaintiffs on this issue? Please share any comments you might have or if you’d like to know more about a particular topic.

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