Defendants Ordered to Review 10 Percent of Unreviewed Documents After Discovery of New Key Word
In Updateme Inc. v. Axel Springer SE, et al, Case No. 17-cv-05054-SI(LB) (N.D. Cal. October 11, 2018), the United States District Court for the Northern District of California granted Plaintiff’s motion for an order compelling Defendant to randomly select and review 10% of its unreviewed documents, produce all responsive documents in the set, and provide a privilege log for all responsive documents being withheld.
Plaintiff, the creator of a news-aggregation cell-phone application, claims that the Defendants allegedly “stole” Plaintiff’s platform and released a copycat. In its current motion, Plaintiff states that it recently learned that the Defendants used the code name “Ajax” to refer to Plaintiff in its internal communications. Defendants further confirmed that there are 5,126 unique documents within the previously collected ESI that hit on the term “Ajax.” Defendants, however, maintain that none of the 5,126 documents containing the term “Ajax” have been reviewed for responsiveness. As such, Plaintiff has asked the court to order Defendants to review those 5,126 documents and produce all responsive documents in two weeks.
In response, Defendant’s maintain that the term “Ajax” is a project name that they created to refer solely to the Plaintiff’s threatened litigation, not to describe Plaintiff. As such, Defendants maintain that all “Ajax” documents are privileged and work-product protected and that the documents are better translated from German as referring to the dispute at hand rather than Plaintiff. Further, the Defendants claim that it would be unduly burdensome, expensive, and disproportional to the claims to review the “Ajax” documents at such late stages of the litigation. Finally, the Defendants argue that since the term “Ajax” was not included in the agreed upon ESI protocols months ago, it would be unfair if it were added at this late stage.
In ruling on the motion, the court initially observes that whether “Ajax” refers to Plaintiff or the threatened litigation with Plaintiff, it is a distinction without a difference. Either way, the search term “Ajax” is likely to return documents that are responsive to Plaintiff’s earlier request for “[a]ll communications … concerning … the application.” Thus, according to the court, documents concerning the Defendants’ dispute with Plaintiff are likely documents concerning the Plaintiff.
Second, the court holds that even if “Ajax” refers to the dispute, this alone does not mean that all documents containing “Ajax” are necessarily more likely to be privileged or protected from disclosure.
However, given the current, advanced stages of discovery, the court chose a middle ground, ordering Defendants to randomly select 10% of the unreviewed documents, review them for responsiveness, produce responsive documents (and a privilege log for any responsive documents that are withheld), and provide a chart listing the number of documents reviewed and the rate of responsiveness (including and not including withheld documents). Finally, the court orders Defendants to complete this process within one week and for the parties to meet and confer after the completion of the process.