Plaintiff’s Motion to Compel ESI Granted Including Setting of 85% Search Term Responsive Rate
In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. April 26, 2019), a Kansas Magistrate Judge granted in part and denied in part Plaintiff’s motion to compel, ordering Defendant to produce documents related to two requests and, with regard to a third request, ordered Defendant to produce documents “to the extent such documents are captured by the ESI search protocol.”
This action revolved around Defendant Spirit’s alleged breach of a retirement agreement with Plaintiff, where Defendant withheld Plaintiff’s retirement benefits due to his claimed violation of the non-compete provision of the agreement when Plaintiff was going to be installed as CEO of Arconic, an aerospace competitor.
During discovery, Plaintiff filed a motion to compel related to the “Business” of Spirit and Arconinc. Specifically, Plaintiff asked the court to compel Defendant to produce (1) its contracts with Boeing and Airbus; (2) its antitrust filings relating to its planned acquisition of Asco Industries; (3) documents related to the aspects of Spirit’s business that Spirit alleges overlap with Arconic’s business; and (4) documents related to Spirit’s relationship with Arconic.”
As to the Boeing and Airbus Contracts, the Court granted Plaintiff’s motion “with respect to the portions of these contracts (or amendments, addenda, exhibits, schedules, data compilations, or lists) that relate to Spirit’s deliverables to Boeing and Airbus.” And, with regard to Antitrust Filings, the Court granted Plaintiff’s motion “with respect to the portion of these filings relating to Spirit’s business and market/marketing positioning, including the index(es) for these filings, the “4(c) documents,” and related white papers.” The Court ordered the defendant to produce documents related to both categories “on or before May 7, 2019.”
With regard to Product Overlaps and Spirit’s Relationship with Arconic, the Court granted these aspects of the motion in part and denied them in part, ordering Defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.” That protocol was as follows:
“After consultation with the parties, the court orders the parties to comply with the following ESI search protocol:
- By May 3, 2019, Plaintiff shall identify up to seven categories of documents for which it seeks ESI.
- By May 20, 2019, for each category of documents, Defendant shall serve a list of the top three custodians most likely to have relevant ESI, from the most likely to the least likely, along with a brief explanation as to why Defendant believes each custodian will have relevant information.
- By May 23, 2019, Plaintiff shall serve a list of five custodians and proposed search terms for each custodian.
*3 • Defendant shall search the identified custodians’ ESI using these proposed search terms. Defendant shall use sampling techniques to assess whether the search has produced an unreasonably large number of non-responsive or irrelevant results and, if so, Spirit shall suggest modified search terms (e.g., different keywords, negative search restrictions, etc.) by May 30, 2019.
- The parties shall meet and confer about search terms and try to achieve an estimated responsive hit rate of at least 85%.
- Defendant shall produce responsive documents from the first five custodians on or before June 21, 2019.
- Meanwhile, the parties shall begin this same process for the next five custodians. By May 30, 2019, Plaintiff will produce to Defendant a list of the next five custodians and proposed search terms for each custodian. If Defendant finds that the estimated responsive hit rate is not at or above 85%, Plaintiff shall suggest modified search terms by June 6, 2019. The court will set a deadline for Defendant to produce documents from the second set of five custodians at a later time.
If Plaintiff wishes to seek ESI from additional custodians beyond the ten described in this protocol, the parties are directed to contact the court for further guidance.”
Finally, the Court denied Plaintiff’s request to order the defendant to pay his attorneys’ fees and costs associated with the motion to compel.