ImprimisRx, LLC v. OSRX, Inc. et al, No. 3:2021cv01305 - Document 103 (S.D. Cal. 2022)
Court Description: Order Denying Defendants' Motion to Compel Production of Search Terms (Dkt. No. 92 ). Signed by Magistrate Judge David D. Leshner on 12/19/22. (jmo)
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ImprimisRx, LLC v. OSRX, Inc. et al Doc. 103 Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1719 Page 1 of 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMPRIMISRX, LLC, Case No.: 21-cv-1305-BAS-DDL Plaintiff, 12 13 v. 14 OSRX, INC. and OCULAR SCIENCE, INC., 15 OSRX, INC. and OCULAR SCIENCE, INC., 18 Counterclaimants, 19 v. 20 IMPRIMISRX, LLC, 21 [Dkt. No. 92] Defendants. 16 17 ORDER DENYING DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF SEARCH TERMS Counterdefendant. 22 23 24 I. 25 BACKGROUND 26 Before the Court is Defendants’ OSRX, Inc. and Ocular Science, Inc.’s 27 (“Defendants”) Motion to Compel Production of Search Terms (“Motion”). Dkt. No. 92. 28 Defendants seek an order compelling Plaintiff ImprimisRx, LLC (“Plaintiff”) to disclose 1 21-cv-1305-BAS-DDL Dockets.Justia.com Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1720 Page 2 of 6 1 the sources, methodology and search terms used to collect emails and other documents 2 from Plaintiff’s president, John Saharek, responsive to Defendants’ requests for 3 production. Defendants bring the instant Motion based on Saharek’s October 17, 2022 4 deposition testimony that, although he expected to be notified if any documents, emails, or 5 electronically stored information (“ESI”) in his possession were collected from him in 6 connection with the case, he was unaware of any such collection. 7 Plaintiff opposes the Motion on the grounds that it considered Defendants’ document 8 requests, collected Saharek’s emails, and properly searched for responsive documents. 9 Dkt. No. 93. Plaintiff also asserts that Defendants fail to articulate any particular deficiency 10 in Plaintiff’s document production. 11 II. 12 LEGAL STANDARD 13 The Federal Rules of Civil Procedure permit a broad scope of discovery: “Parties 14 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 15 claim or defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). 16 “Information within this scope of discovery need not be admissible in evidence to be 17 discoverable.” Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or 18 less probable than it would be without the evidence; and (b) the fact is of consequence in 19 determining the action.” Fed. R. Evid. 401. 20 III. 21 DISCUSSION 22 A. Cooperation Regarding ESI Search Terms 23 “[I]n cases involving voluminous amounts of ESI and/or numerous custodians, 24 parties frequently agree, at the outset, to exchange ESI search terms.” Terpin v. AT&T Inc., 25 No. CV 18-6975-ODW (KSx), 2022 WL 3013153, at *5 (C.D. Cal. June 13, 2022). The 26 Court agrees with the proposition that “the more efficient procedure is to agree on search 27 terms and custodians before conducting electronic data collection.” Id. See also Baranco 28 v. Ford Motor Co., No. 17-CV-03580-EMC, 2018 WL 9869540, at *1 (N.D. Cal. Apr. 10, 2 21-cv-1305-BAS-DDL Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1721 Page 3 of 6 1 2018) (“It is well-established that, when search terms are used in ESI discovery, the parties 2 should cooperate to select reasonable search terms and custodians.”). Indeed, the ESI 3 Checklist for the Rule 26(f) Conference that is incorporated into the Court’s Chambers 4 Rules specifically directs the parties to meet and confer at the outset of the case regarding, 5 among other things, “[t]he search method(s), including specific words or phrases or other 6 methodology, that will be used to identify discoverable ESI and filter out ESI that is not 7 subject to discovery.” The ESI Checklist is designed to promote collaborative dialogue 8 between the parties and facilitate the efficient collection and production of ESI discovery 9 and avoid disputes such as this Motion. 10 Unfortunately, it is apparent that the parties did not engage in a fulsome meet and 11 confer regarding the ESI Checklist items, including relevant search terms, at the outset of 12 this case. Plaintiff’s opposition attaches correspondence between the parties regarding 13 search terms that appears to post-date Plaintiff’s document production. Dkt. Nos. 93-5, 14 93-6, 93-7 and 93-8. And at a discovery conference on December 16, 2022, concerning 15 another discovery dispute in this case, counsel for both parties affirmed that they did not 16 meet and confer regarding search terms prior to propounding discovery or producing 17 documents. That failure to meet and confer regarding search terms that Plaintiff would use 18 to locate responsive documents, including emails, in its repository of approximately 2 19 million documents likely resulted in otherwise avoidable litigation. See Baranco, 2018 20 WL 9869540, at *1 (“Transparency and cooperation prior to document collection promote 21 efficiency by reducing the risk that after-the-fact disputes will necessitate a costly second 22 or third iteration.”). 23 Plaintiff’s counsel confirmed that the repository is searchable, and the Court ordered 24 the parties to meet and confer regarding search terms for documents that are responsive to 25 Defendants’ third set of requests for production. The Court expects the parties’ good faith 26 efforts to agree on appropriate search terms that will narrow (if not eliminate) their disputes 27 and will eliminate the perceived need for another motion such as this one. 28 /// 3 21-cv-1305-BAS-DDL Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1722 Page 4 of 6 1 B. Discovery of Search Terms Used By Plaintiff 2 “Discovery into another party’s discovery process is disfavored,” and “requests for 3 such ‘meta-discovery’ should be closely scrutinized in light of the danger of extending the 4 already costly and time-consuming discovery process ad infinitum.” Jensen v. BMW of 5 North America, LLC, 328 F.R.D. 557, 566 (S.D. Cal. 2019). “Generally, courts will only 6 permit such discovery where there is some indication that a party’s discovery has been 7 insufficient or deficient.” Id. 8 In addressing a request to compel disclosure of search terms employed by an 9 opposing party to identify responsive documents, relevant considerations include 10 (1) whether the request is made prior to the collection and production of responsive 11 documents and (2) if the request for search terms is made after production, whether the 12 party seeking disclosure has identified some deficiency or insufficiency of the responding 13 party’s production. In certain instances, courts have ordered parties to engage in meet and 14 confer efforts, including disclosure of proposed search terms, before the search process 15 begins. See, e.g., Baranco, 2018 WL 9869540, at *1 (“The Court orders Ford to disclose 16 its proposed search methodology, including the identity of its custodians, so that Plaintiffs 17 have a reasonable opportunity to provide their input, objections, or suggestions as part of 18 the meet-and-confer.”); Frieri v. Sysco Corp., No. 3:16-cv-01432-JLS-NLS, 2017 WL 19 2908777, at *6 (S.D. Cal. July 7, 2017) (“Plaintiff’s counsel is ORDERED to meet and 20 confer with Defendant’s counsel to develop reasonable, tailored search terms and 21 appropriate connectors to limit the scope and breadth of the requests that seek emails.”). 22 The analysis changes where a party seeks post-production disclosure of search terms 23 used by the opposing party to identify responsive documents. The Court agrees with Terpin 24 that “there is no fundamental discovery requirement that a party provide its ESI search 25 terms in litigation.” Terpin, 2022 WL 3013153, at *5 (internal quotations omitted). Rather, 26 as noted above, post-production “discovery on discovery” of search terms generally is 27 warranted only on a showing that a party’s production has been “insufficient or deficient.” 28 Jensen, 328 F.R.D. at 566 (denying motion to compel disclosure of search efforts); Terpin, 4 21-cv-1305-BAS-DDL Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1723 Page 5 of 6 1 2022 WL 3013153, at *5 (C.D. Cal. June 13, 2022) (denying motion to compel disclosure 2 of search terms post-production where the moving party “offers only speculation and 3 unsupported assertions” regarding alleged deficiencies in production); accord Orillaneda 4 v. French Culinary Institute, No. 07 Civ. 3206(RJH)(HBP), 2011 WL 4375365, at *6 5 (S.D.N.Y. Sept. 19, 2011) (denying request for discovery of search procedures where 6 requesting party “has not identified any specific reasons for believing that defendant’s 7 production is deficient”). 8 Here, Defendants fail to show a deficiency in Plaintiff’s collection, review, and 9 production of documents in Saharek’s possession. Saharek’s deposition testimony that he 10 was not aware his emails were collected does not contradict Plaintiff’s assertion that it 11 collected Saharek’s emails and produced responsive, non-privileged emails. Additionally, 12 Plaintiff has provided a declaration of its IT Director, Garrett Scarborough, who declares 13 that, although he did not personally discuss the email collection with Saharek, he directly 14 supervised and had knowledge of actions taken by the company’s former Network Security 15 Supervisor to collect Saharek’s emails, which were discussed with Plaintiff’s in-house 16 counsel and subsequently transferred to Plaintiff’s counsel. Dkt. No. 93-1 at 2. 17 Defendants have not shown that Plaintiff’s collection and production of Saharek’s 18 emails was “insufficient or deficient.” Jensen, 328 F.R.D. at 566. As such, the Court will 19 not compel Plaintiff to produce the search terms it used to locate Saharek’s emails that 20 were responsive to Defendants’ requests for production. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 21-cv-1305-BAS-DDL Case 3:21-cv-01305-BAS-DDL Document 103 Filed 12/19/22 PageID.1724 Page 6 of 6 1 IV. 2 CONCLUSION 3 4 5 6 For the foregoing reasons, the Court DENIES Defendants’ Motion to Compel Production of Search Terms. IT IS SO ORDERED. Dated: December 19, 2022 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 21-cv-1305-BAS-DDL
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