Themis Bar Review, LLC v. Kaplan, Inc., No. 3:2014cv00208 - Document 71 (S.D. Cal. 2015)
Court Description: ORDER granting in part 58 Defendant's Motion to Compel Production of Documents. Signed by Magistrate Judge Barbara Lynn Major on 5/26/2015. (sjt)
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Themis Bar Review, LLC v. Kaplan, Inc. Doc. 71 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THEMIS BAR REVIEW, LLC, 12 Plaintiff, v. 13 KAPLAN, INC., 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) Case No. 14CV208- L (BLM) ORDER GRANTI NG I N PART DEFENDANT’S MOTI ON TO COMPEL PRODUCTI ON OF DOCUMENTS [ ECF No. 58] 16 17 Currently before the Court is Defendant’s May 4, 2015 motion to compel production of 18 documents [ ECF No. 58-1 (“MTC”)] , Plaintiff’s May 11, 2015 opposition to the motion [ ECF No.62 19 (“Oppo.”)] , and Defendant’s May 15, 2015 reply [ ECF No. 63 (“Reply”)] . For the reasons set forth 20 below, Defendant’s motion to compel is GRANTED I N PART. 21 PROCEDURAL BACKGROUND 22 The above-entitled matter was initiated on January 30, 2014 when Plaintiff filed a 23 complaint for declaratory relief. ECF No. 1. On April 30, 2014, Defendant answered Plaintiff’s 24 complaint and the Court held a telephonic Case Management Conference (“CMC”) on June 23, 25 2014. ECF Nos. 16 and 24. That same day, the Court issued a CMC Order Regulating Discovery 26 and Other Pretrial Proceedings. ECF No. 25. 27 On August 20, 2014, the Court convened a Mandatory Settlement Conference (“MSC”). 28 ECF No. 30. The case settled and the Court issued an order confirming settlement and setting 14CV208-L (BLM) Dockets.Justia.com 1 an October 14, 2014 deadline for the parties to file a joint motion for dismissal. ECF No. 31. On 2 September 22, 2014, the Court held a telephonic CMC and discovered that the parties were still 3 in the process of negotiating the details of the settlement agreement. ECF Nos. 32 and 33. On 4 October 17, 2014, counsel for both parties, Mr. Kenneth Fitzgerald and Mr. Neal Klausner, 5 contacted this Court’s chambers via telephone to inform the Court that the case had settled. ECF 6 No. 34. The Court issued an order resetting the deadline for the parties to file their joint motion 7 for dismissal to November 6, 2014. Id. at 2. The parties failed to file a join motion for dismissal 8 and instead, appeared for a Settlement Disposition Conference (“SDC”) on November 13, 2014. 9 ECF No. 35. During the SDC, the parties indicated that the settlement had fallen apart and that 10 they needed to pursue litigation. Accordingly, the Court issued an amended scheduling order. 11 ECF No. 36. On December 29, 2014, the Court entered the parties’ protective order. ECF No. 40. 12 On April 22, 2015, defense counsel, Mr. David S. Greenberg, contacted the Court regarding 13 a discovery dispute between the parties. ECF No. 52. In regard to the dispute, the Court issued 14 a briefing schedule and, in accordance with the Court’s briefing schedule, the parties timely filed 15 their respective motions and responses. MTC, Oppo., and Reply. 16 DI SCOVERY BACKGROUND 17 On August 8, 2014, Defendant served its first Request for Production of Documents (“RFP”) 18 on Plaintiff seeking documents related to Plaintiff’s pass rate advertising and data substantiating 19 the pass rates identified in Plaintiff’s advertising. MTC at 6-7, ECF No. 58-2, Declaration of David 20 Greenberg (“Greenberg Decl.”) at 7, ECF No. 62-1, Declaration of Kenneth M. Fitzgerald 21 (“Fitzgerald Decl.”) at 2. Although responses were due on or around September 10, 2014, 22 Plaintiff did not respond or object until November 26, 2014. Greenberg Decl. at 7 and Exh. 3. 23 Plaintiff’s first production occurred on December 23, 20141 and included 23 pages of financial 24 information. Id. 25 On January 9, 2015, Plaintiff produced a CD-Rom containing spreadsheets reflecting 26 27 28 1 The declaration states that the first production was on December 23, 2015. Greenberg Decl. at 7. The Court assumes that this is a typographical error and Mr. Greenberg meant December 23, 2014. 2 14CV208-L (BLM) 1 Plaintiff’s pass rate statistics by jurisdiction2 and the records of Plaintiff’s students’ bar exam 2 results3 with the percentage of Plaintiff’s course work that each student had completed. Id. at 3 8.; see also MTC at 7. The spreadsheets were produced as PDF copies of the electronic files that 4 were Microsoft Excel spreadsheets and which had been stripped of their filtering, sorting, and 5 searching capabilities. Id. 6 7 On March 2, 2015, Mr. Greenberg emailed Mr. Cochran regarding search terms and requested 8 the resulting collection of documents as image files with related fully searchable message text, also including the usual metadata (to, from, cc, date sent, subject, beginning bates no., ending bates no., parent/ attachment ID nos., etc.), in a format that can be uploaded into a Summation database. 9 10 11 Greenberg Decl., Exh. 9 at 12. Mr. Cochran responded to the email, but did not address the 12 request for metadata. I d. at 11. On March 23, 2015, Mr. Greenberg emailed Mr. Cochran and 13 wrote 14 15 we previously requested native copies of the Microsoft Excel files Themis produced in PDF format, containing pass rate information and student enrollment pass/ fail data, Themis 000157-Themis 001161. (See the attached email.) Please supplement your production with these files as well 16 17 Id. at 8. Mr. Cochran responded to the request by asking for “authority that obligates us to 18 produce the native files.” Id. at 7. On March 30, 2015, Mr. Greenberg asked Mr. Cochran to 19 confirm that the materials being prepared from various individuals “will include the extracted 20 text.” Id. at 6. On April 17, 2015, Mr. Greenberg sent another email to Mr. Cochran seeking 21 confirmation “that the extracted text is included” and offering to meet and confer at a specific 22 time. Id. at 5. Mr. Cochran responded that same day, but did not mention the extracted text or 23 the offer to meet and confer. Id. at 4. 24 On April 22, 2015, Plaintiff produced a hard drive containing 822,493 pages of email 25 26 2 27 28 These documents were identified as THEMIS 000157 through THEMIS 000257. Greenberg Decl. at 8; see also MTC at 7. 3 These documents were identified as THEMIS 000258 through THEMIS 0001161. Greenberg Decl. at 8; see also MTC at 7. 3 14CV208-L (BLM) 1 communications.4 Greenberg Decl. at 14; see also MTC at 8. The production contained no 2 metadata - for example the “to” “from” “date” and “subject” lines of the emails - and were not 3 text searchable. 4 spreadsheets that were attached to the emails were “process[ ed] and image[ d] ” and, therefore, 5 made unsearchable. Greenberg Decl. at 15. When Mr. Greenberg responded to an email from 6 Mr. Cochran about the hard drive on April 22, 2015, he again followed up on the extracted text 7 issue stating 8 Greenberg Decl. at 14-15; see also MTC at 8. In addition, all Microsoft 10 [ u] nfortunately, you have not answered my questions about the extracted text from the emails you are producing and about the native excel files. I left you a voicemail on Friday but you have not returned my call. Further to the voicemail I left you earlier today, we will be contacting Magistrate Major’s chambers to arrange a conference call with the judge 11 Id. at 3. Mr. Cochran responded by stating that the Joint Discovery Plan only required the 12 production of PDF documents and that the parties had “never discussed producing the hard drive 13 with extracted text, nor the . . . format of the hard drive production.” Id., Exh. 9 at 3. 9 14 On May 7, 2015, Mr. Cochran produced the Mircosoft Excel spreadsheets in native format 15 and explained “[ p] reviously, you demanded that we provide the native files to you without 16 explanation. For the first time, you explained in your motion to compel why Kaplan needed the 17 files in native format.” ECF No. 63-1, Reply Declaration of David S. Greenberg (“Greenberg Reply 18 Decl.”), Exh. 12 at 4. 19 On May 12, 2015, Mr. Greenberg, offered “to pay 50% of your vendor’s final invoice -- up 20 to a total of $8,200 -- to produce the e-mails and attachments in the format we have specified 21 in our motion” despite its position that “Themis should rightfully bear any costs involved in 22 producing the emails with metadata and searchable extracted text.” Id. at 2. That same day Mr. 23 Cochran responded that Plaintiff would only produced the emails in native format if Defendant 24 wanted to pay the entire cost. Id. 25 26 LEGAL STANDARD Federal Rule of Civil Procedure (“FRCP”) 34 reads: 27 28 4 These documents were identified as TBR 00000001 through TBR 00822493. Greenberg Decl. at 14-15; see also MTC at 8. 4 14CV208-L (BLM) 1 2 3 4 5 6 7 Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. FRCP 34(b)(2)(E)(i-iii). DI SCUSSI ON 8 Defendant seeks an order from the Court requiring 9 (1) [ ] Themis to reproduce, in native format, the Microsoft Excel spreadsheets previously produced as static PDF images at control numbers THEMIS 000257 through THEMIS 001161; [ and] (2) [ ] Themis to reproduce the email documents previously produced as images bearing control numbers TBR00000001 through TBR00822493, this time as images with associated metadata indicating at least the following information for each document: custodian, [ ] beginning and ending control number, [ ] sender, [ ] recipients, [ ] carbon copy recipients, [ ] subject/ “re:” line, [ ] date and time sent/ received, [ ] control numbers for any “parent” message or message attachments, and [ ] searchable, extracted message text, with such images and metadata to be accompanied by (a) native Microsoft Excel versions of any Excel files attached to these email communications, with placeholder images or “sheets” within the image collection, identifying those attachments and their control numbers, and (b) a load file compatible with the “Summation” litigation review software 10 11 12 13 14 15 16 17 MTC at 15-16. In support, Defendant argues that (1) the spreadsheets at issue are typically 18 maintained as Excel files not PDFs and Plaintiff’s production violates FRCP 34 which requires 19 parties to produce electronically stored information (“ESI”) in the manner in which it is ordinarily 20 maintained, (2) the spreadsheet PDFs are difficult to review and interpret because “in many 21 instances single rows of data appear broken across two non-consecutive pages,” (3) many of the 22 PDFs contain print that is so small it is “virtually illegible,” (4) Plaintiff is not excused from 23 producing native copies because Defendant refused a similar request, (5) producing the 24 spreadsheets in native form would impose “little to no burden or cost on” Plaintiff, (6) the current 25 state of the documents imposes a large burden on Defendant, (7) the emails as produced 26 constitute an impermissible “document dump,” and (8) the cost to reproduce the emails would 27 likely be minimal to Plaintiff. Id. at 8-16. 28 5 14CV208-L (BLM) 1 Plaintiff opposes Defendant’s request and contends that (1) Defendant’s request for native 2 Microsoft files is moot because Plaintiff provided Defendant with the native files, (2) the parties 3 agreed in the Joint Discovery Plan lodged with the Court that ESI would be produced in PDF 4 format, (3) Defendant has produced all of its documents in PDF format, (4) its production does 5 not violate FRCP 34 as Defendant omitted a key portion of the rule in its motion, (5) Defendant’s 6 cited cases do not support its position, (6) Defendant failed to specify the form of the production 7 in its discovery requests, (7) Defendant does not need the documents it is requesting because 8 its motion for summary judgment is due on May 22, 2015 and there are no issues of disputed 9 fact, and (8) it would cost Plaintiff $16,400 to reproduce the disputed documents, but that it 10 would do so if Defendant was willing to pay for it. Oppo. at 10-15; see also ECF No. 62-2, 11 Declaration of Keith M. Cochran (“Cochran Decl.”) at 2-3. 12 Defendant replies that the Joint Discovery Plan sets forth a procedure for requesting the 13 production of metadata that requires both sides to meet and confer regarding the request. Reply 14 at 5. Defendant states that it requested emails with basic metadata prior to the date Plaintiff 15 began processing emails for production, but that Plaintiff ignored the request, refused to meet 16 and proceeded to have its emails converted to non-searchable PDF documents. Id. at 5-6. 17 Defendant notes that at the time it asked for the emails to be produced with metadata, Plaintiff 18 would not have been required to duplicate production efforts or incur additional costs to provide 19 the metadata. Id. at 6. 20 opposition are distinguishable from the instant dispute because those cases involved metadata 21 requests that came after the producing party had produced documents without metadata. Id. at 22 7. Defendant further argues that the pending cross-motions for summary judgment have no 23 bearing on the instant dispute because if the motions are not granted, the discovery will be 24 necessary and if Defendant’s motion is granted, the emails will be relevant to Defendant’s 25 recovery of attorney’s fees and costs. Id. at 9. Defendant also states that it offered to pay half 26 of the costs necessary to resolve the instant motion, but Plaintiff refused. I d. at 3; Greenberg 27 Reply Decl. at 2. Finally, Defendant notes that shortly after the instant motion was filed, Plaintiff Defendant argues that the cases Plaintiff cites to in support of its 28 6 14CV208-L (BLM) 1 “immediately produced [ its pass rate] data in native format, mooting one part of [ Defendant’s] 2 motion.” Id. at 2. Accordingly, the first part of Defendant’s request from the Court is now moot 3 and Defendant only seeks an order requiring Plaintiff to provide the relevant emails with 4 metadata.5 Id. at 9-10. 5 Analysis 6 In accordance with the Court’s May 27, 2014 Order Finding Early Neutral Evaluation 7 Inappropriate, Directing Rule 26 Compliance, and Setting Case Management Conference [ ECF No. 8 20] , the parties lodged a Joint Discovery Plan with chambers. The portion of the Joint Discovery 9 Plan that is currently at issue states: 10 11 12 13 14 C. I ssues About Disclosure Or Discovery Of Electronically Stored I nformation, I ncluding The Form Or Forms I n Which I t Should Be Produced – Rule 26( f) ( 3) ( C) The parties agree: (i) that they can limit searches for and production of electronically stored information (“ESI”) to custodians reasonably likely to have relevant information; and (ii) to avoid unduly burdensome searches, such as of backup tapes or dynamic databases (including automatically deleted or overwritten data), absent a showing of good cause. Responsive documents may be produced in PDF format, unless otherwise agreed between the parties. 15 16 17 18 19 If a party believes, on a case-by-case basis, that documents should be produced in a format other than native format, or that metadata should be produced, the parties collectively agree that they will meet and confer in good faith to discuss such alternative production arrangements. The parties have further agreed that they will meet and confer in good faith to ensure that the format of each party’s production is compatible with the technical requirements of the receiving party’s document management systems. 20 ECF No. 62-4, Exhibit 1 to Oppo. (emphasis in original). After agreeing that responsive 21 documents could be produced in PDF format, the parties recognized that certain documents may 22 need to be produced with metadata or in a non-PDF format and established a procedure for 23 requesting such a production. Id. In accordance with that provision, Defendant advised Plaintiff 24 25 26 27 28 5 Emails TBR00000001 through TBR00822493, with associated metadata indicating custodian, beginning and ending control number, sender, recipients, carbon copy recipients, subject/ “re:” line, date and time sent/ received, control numbers for any parent message or message attachments, and searchable, extracted message text, with such images and metadata to be accompanied by (a) native Microsoft Excel versions of any Excel files attached to these email communications, with placeholder images or sheets within the image collection, identifying those attachments and their control numbers, and (b) a load file compatible with the “Summation” litigation review software. Reply at 9-10. 7 14CV208-L (BLM) 1 that it needed the spreadsheets and emails produced in the native format and attempted to meet 2 and confer with Plaintiff to discuss having Plaintiff’s emails and Microsoft Excel spreadsheets 3 produced with metadata. Greenberg Decl., Exh. 9 at 3, 5-12. Instead of actively meeting and 4 conferring as contemplated by the Joint Discovery Plan, it appears that Plaintiff initially ignored 5 the issue and Defendant's offer to meet and confer and later ended the meet and confer attempts 6 by stating that according to the Joint Discovery Plan, it was not required to produce the requested 7 documents in any format other than PDF. Id. 8 Plaintiff then changed its position on the Microsoft Excel spreadsheets and produced them in 9 native format, but did not change its position on the emails at issue. Greenberg Reply Decl., Exh. 10 12 at 2, 4. The parties' stipulation trumps FRCP 34 and the parties were therefore required to 11 meet and confer in good faith regarding Defendant's request. Melian Labs Inc. v. Triology LLC, 12 2014 WL 4386439, * 2 (N.D. Cal., Sept. 4, 2014) (finding the parties’ Joint Rule 26(f) Report to 13 be a stipulation as to ESI production and that accordingly, Rule 34(b) no longer governed). After reviewing Defendant's motion to compel, 14 Based on the evidence provided by the parties and for the reasons set forth herein, the 15 Court DENI ES AS MOOT Defendant’s request that Plaintiff reproduce the spreadsheets in native 16 format, GRANTS Defendant’s request for production of the emails with associated metadata in 17 searchable format, and REQUI RES Plaintiff to pay for the cost of reproducing the emails with 18 the associated metadata in searchable format. The Court finds that it is appropriate that Plaintiff 19 pay for the reproduction because Plaintiff ignored Defendant’s request to produce the documents 20 in the native format with metadata, failed to meet and confer with Defendant as required by the 21 Joint Discovery Plan, and then produced the documents in the unsearchable PDF format without 22 metadata. Had Plaintiff met and conferred with Defendant as required by the Joint Discovery 23 Plan, the parties could have resolved this issue or sought assistance from the Court prior to 24 Plaintiff paying for the production of the emails as PDFs, and avoided the unnecessary expense 25 of a second production. Because Plaintiff’s actions are the reason a second production is 26 necessary, Plaintiff must bear the cost of that production. Plaintiff must produce to Defendant 27 by June 9, 2015 the following data: 28 8 14CV208-L (BLM) 1 2 3 4 5 TBR00000001 through TBR00822493 as images with associated metadata indicating for each document the (1) custodian, (2) beginning and ending control number, (3) sender, (4) recipients, (5) carbon copy recipients, (6) subject/ “re:” line, (7) date and time sent/ received, (8) control numbers for any “parent” message or message attachments, and (9) searchable, extracted message text, with such images and metadata to be accompanied by (a) native Microsoft Excel versions of any Excel files attached to these email communications, with placeholder images or “sheets” within the image collection, identifying those attachments and their control numbers, and (b) a load file compatible with the “Summation” litigation review software. 6 I T I S SO ORDERED. 7 8 DATED: May 26, 2015 9 10 11 12 B A R B A R A L . United States Magistrate Judge M A J O R 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 14CV208-L (BLM)
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