ERIN WILDER-DOOMES, Magistrate Judge.
Before the court is The Louisiana Funds' Renewal of Motion to Compel on Documents in the Control of the Citco Group, Ltd. (the "Renewed Motion to Compel").
On March 1, 2013, Plaintiffs filed suit against 23 defendants, including the Citco Defendants, asserting claims under the Louisiana Securities Act and Louisiana Unfair Trade Practices Act, as well as third party beneficiary, unjust enrichment, breach of contract, negligent misrepresentation, and general tort claims.
Plaintiffs previously filed a Motion to Compel
The Initial Motion to Compel was discussed during an October 24, 2017 status conference with the parties, and the court found that Plaintiffs' concerns regarding how information was gathered by the Citco Group to respond to discovery should be addressed via a deposition pursuant to Fed. R. Civ. P. 30(b)(6).
Plaintiffs took the 30(b)(6) deposition of Citco Group via Mr. John Diver, Associate Group General Counsel, on November 8, 2017.
With regard to the gathering of documents, Mr. Diver testified that
Mr. Diver testified that "[f]or the companies that had shared drives, the search was performed by the local representative of that defendant company, in the location of that defendant company."
Per their Renewed Motion to Compel, Plaintiffs assert that they previously propounded interrogatories to the Citco Defendants in order to identify persons with knowledge of "key issues" in order to determine appropriate custodians.
In opposition to the Renewed Motion to Compel, the Citco Defendants reiterate that Defendants "collected documents from the three general sources litigants ordinarily . . . collect from: (a) hard copy files of each Citco Defendant entity; (b) the shared drive files of each Citco Defendant entity; and (c) email files of the 21 agreed-upon custodians using 56 agreed-upon search terms."
"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P. 26(b)(1). A determination of relevancy is tied to applicable substantive law and then weighed against the six proportionality factors. Any information sought that is not relevant to a party's claim or defense is not discoverable, regardless of proportionality. The court must additionally limit the frequency or extent of discovery if it determines that: "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
"For a motion to compel, `[t]he moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence.'" Mirror Worlds Technologies, LLC v. Apple Inc., Case No. 6:13-cv-419, 2016 WL 4265758, at *1 (E.D. Tex. Mar. 17, 2016) (quoting SSL Servs., LLC v. Citrix Sys., Inc., No. 2-08-cv-158, 2010 WL 547478, at *2 (E.D. Tex. Feb. 10, 2010)). "Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad or unduly burdensome or oppressive, and thus should not be permitted." Mirror Worlds Technologies, LLC, 2016 WL 4265758 at *1. See also, Wymore v. Nail, No. 5:14-cv-3493, 2016 WL 1452437, at *1 (W.D. La. April 13, 2016) ("Once a party moving to compel discovery establishes that the materials and information it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon the party resisting discovery to substantiate its objections.") (citing McLeod, lexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)); Rivero v. Sunbeam Products, Inc., Civil No. 08-591, 2010 WL 11451127, at *4 (W.D. Tex. Jan. 12, 2010) ("Plaintiffs, who bear the burden of proof in support of their motion to compel. . . .").
The Federal Rules of Civil Procedure explicitly direct parties to discuss "issues about disclosure, discovery, or preservation of electronically stored information . . ." early in the litigation process when making their discovery plan. FRCP 26(f)(3)(C). See also, Advisory Committee Notes to the 2006 Amendments ("Rule 26(f) is amended to direct the parties to discuss discovery of electronically stored information during their discovery-planning conference" and noting that the parties "may identify the various sources of such information within a party's control that should be searched for electronically stored information."). A responding party is generally entitled to select the custodians most likely to possess responsive information. See, Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 CV 0293, 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017) ("Absent agreement among the parties, then, the responding party is entitled to select the custodians most likely to possess responsive information and to search the files of those individuals."). "Unless that choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should play no role in dictating the design of the search, whether in choosing search tools, selecting search terms, or . . . designating custodians." Id. Further, "`a party seeking to compel another party to search the files of additional custodians bears the burden of establishing the relevance of the documents it seeks from those custodians.'" Id. (quoting Lightsquared Inc. v. Deere & Co., No. 13 Civ. 8157, 2015 WL 8675377, at *5 (S.D.N.Y. Dec. 10, 2015)). See also, Enslin v. Coca-Cola Company, 14-6476, 2016 WL 7042206, at * 3 (E.D. Pa. June 8, 2016) ("Asking a court to compel a party to search the ESI of additional custodians is similar to asking a court to compel a party to undertake additional efforts to search for paper documents. In either case, the requesting party is second-guessing the responding party's representation that it conducted a reasonable inquiry for responsive information, and in either case, the burden appropriately lies with the requesting party to show that the responding party's search was inadequate.") (citing Scott C. v. Bethlehem Area Sch. Dist., No. 00-642, 2002 WL 32349817, at *1 (E.D. Pa. July 23, 2002) (refusing to compel a party to conduct a further search for documents because the requesting party "ha[d] not pointed to any evidence" that the responding party had failed to conduct a reasonable search) & The Sedona Conference, The Sedona Principles 43 (2007) ("The requesting party has the burden on a motion to compel to show that the responding party's steps to . . . produce relevant electronically stored information were inadequate.")); Ford Motor Co. v. Edgewood Properties, Inc., Civil Action No. 06-1278, 257 F.R.D. 418, 427 (D.N.J. May 19, 2009) ("`[a]bsen[t] agreement, a [responding] party has the presumption, under Sedona Principle 6, that it is in the best position to choose an appropriate method of searching and culling data.'") (citing The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery).
Based on the parties' correspondence, the parties agreed upon 56 search terms and the following 21 document custodians: (1) Albert van Nijen, (2) Angus Dacker, (3) Aracelis Martinez, (4) Chris Smeets, (5) Ermanno Unternaechrer, (6) Gabriel Magris, (7) Larry Luckmann, (8) Miklos Ujhelyi, (9) Ronald Irausqin, (10) Shaun Gale, (11) Trent Grant, (12) Wiekert Weber, (13) Katie Bernard, (14) Yves Bloch, (15) Demetria Moss, (16) Nina Michelsen, (17) Jan Oyens, (18) William Keunen, (19) Gilbert Grosjean, (20) Enrico Laddaga, (21) Denis Muys.
Instead, Plaintiffs seek permission from this court to email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents. That is simply unreasonable, and in essence is a request for the Citco Defendants to "go back to square one" of their document production efforts despite the parties' agreement regarding custodians and search terms, the Citco Defendants apparent willingness to consider additional custodians and search terms, and Plaintiffs failure to identify or explain the necessity of any additional custodians or search terms. Further, such a large scale search raises proportionality concerns and, especially in light of the parties' previous agreements and efforts, would be unduly burdensome.
"`[T]here is no obligation on the part of a responding party to examine every scrap of paper in its potentially voluminous files," and "[i]n an era where vast amounts of electronic information is available for review, . . . [c]ourts cannot and do not expect that any party can meet a standard of perfection.'" Enslin, 2016 WL 7042206, at * 3 (citing Treppel v. Bioval Corp., 03 Civ. 3002, 233 F.R.D. 363, 374 (S.D.N.Y. Feb. 6, 2006) & Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 05 Civ 9016, 685 F.Supp.2d 456, 461 (S.D.N.Y. May 28, 2010) (abrogated on other grounds, Chin v. Port Authority of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012)). Here, Plaintiffs' request strikes the undersigned as a request to somehow ensure that every single potentially responsive document (no matter how cumulative or burdensome to obtain) should be produced. However, despite Plaintiffs' protestations, they have not established that the searches conducted so far were unreasonable, and the court's review of Mr. Diver's deposition testimony shows that the Citco Defendants' did make reasonable efforts to identify appropriate custodians and responsive documents. The undersigned assumes that the Citco Defendants, in keeping with the representations set forth in the opposition, will continue to be willing to discuss additional custodians and search terms with Plaintiffs.
For the reasons set forth herein, the Renewed Motion to Compel