In Alta Devices, Inc. v. LG Electronics, Inc., Case No. 18-cv-00404-LHK (VKD)(N.D. Ca. Feb. 20, 2019), the court denied Plaintiff’s motion to require Defendant to conduct ESI searches across thirty-three custodial files, finding that Plaintiff’s request was not proportional to the needs of the case.
In its motion, the Plaintiff emphasized that the information it needed to prove trade secret misappropriation by Defendant existed almost entirely within the Defendant’s possession and that the list of individuals provided by the Plaintiff are all current and former employees of Defendant.
In opposition, Defendant argued that the list is not proportional to the needs of the case. Specifically, Defendant argued that several of the thirty-three custodians have, at best, only limited involvement in the events relative to the case. Defendants also argued that a number of the proposed custodians are senior executives entitled to the protection of the “apex” doctrine. See, e.g., Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263-64 (N.D. Cal. 2012) (describing purpose of doctrine and its application with respect to depositions).
In ruling on the motion, the court held that Plaintiff’s demand for discovery from thirty-three custodians is not proportional to the needs of the case. The court stated, “based on [Plaintiff’s] own discussion of relevance, it appears that several of the proposed [Defendant] custodians are on [Plaintiff’s]’ list because they expressed interest in or requested information, and not because there is a factual basis to believe they actually obtained, used, or disclosed [Plaintiff’s] trade secret information. However, the Court disagrees with [Defendant] that simply because a prospective custodian happens to be a senior executive, such custodian is not subject to collection of responsive ESI.”
Plaintiff may obtain custodial ESI discovery from no more than 10 Defendant custodians, subject to the following guidelines:
1. Plaintiff may elect to obtain ESI from any custodian identified in Defendant’s initial disclosures.
2. Plaintiff may not obtain ESI from any custodian whose only known involvement in the matter is the setting up of a meeting, the expression of interest in a meeting or in obtaining information, or the negotiation of an NDA.
3. Plaintiff may elect to obtain ESI from a custodian who is a senior executive, if Plaintiff has a factual basis to believe that such senior executive has relevant information.
4. In selecting custodians, Plaintiff should consider carefully Defendant’s representations about the futility of a custodial search for ESI of former employees for whom Defendant represents it has no such information.
The court concluded that the order is without prejudice to Plaintiff’s ability to move for ESI discovery from additional Defendant custodians, based on a showing of good cause. Finally, the court held that in evaluating any such further request, the Court would consider shifting the cost of such collection to the Plaintiff.