Are Third-Parties Exempt from Standard Electronic Discovery Obligations?
In our last blog, we discussed the Order dated May 9, 2013 in Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013). Google was subpoenaed as a third-party in the action, and after responding to the subpoena, Google rejected Apple’s request to disclose the search terms used to produce the electronic data. Google’s main argument was that as a third-party to the case, it was exempt from the usual obligations that the primary parties incur regarding the sufficiency of production. This argument was ultimately rejected by the district court, who cited the Illinois federal district court case DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D.Ill. 2010).
In DeGeer, the facts of the case were very similar: a defendant sought discovery from a third-party and discovery was produced. Then they came to an impasse: the defendant sought the search terms used and the third-party refused. The defendant refused to offer new search terms unless the third-party disclosed the original search terms. The DeGeer court noted that a third-party who refuses to disclose search terms “violated the principles of an open, transparent discovery process.” The DeGeers court also admonished the defendant in refusing to offer additional search terms.
Citing the principles of “cooperative, collaborative, and transparent discovery, electronic or conventional…the proper and most efficient course of action would have been an agreement…as to the search terms and data custodians prior to…electronic document retrieval.” Being a third-party to the litigation does not exempt a person or entity from this principle.
Following the DeGeer logic, the court in Apple v. Samsung ordered Google to produce the search terms used and ordered a meet and confer between the parties.