Defendants’ Motion to Compel Production of Search Terms Denied

10 Mar 2023

In IMPRIMISRX v. OSRX, INC., Case No. 21-cv-1305-BAS-DDL (S.D. CA, Dec. 19, 2022), before the Court was Defendants’ Motion to Compel Production of Search Terms (“Motion”). Defendants sought an order compelling Plaintiff to disclose the sources, methodology, and search terms used to collect emails and other documents from Plaintiff’s president, John Saharek, responsive to Defendants’ requests for production.

Defendants brought the instant Motion based on Saharek’s Oct. 17, 2022 deposition testimony that, although he expected to be notified if any documents, emails, or ESI in his possession were collected from him in connection with the case, he was unaware of any such collection.

Plaintiff opposed the Motion on the grounds that it considered Defendants’ document requests, collected Saharek’s emails, and properly searched for responsive documents. Plaintiff also asserted that Defendants fail to articulate any deficiency in Plaintiff’s document production.

“[I]n cases involving voluminous amounts of ESI and/or numerous custodians, parties frequently agree, at the outset, to exchange ESI search terms.” Terpin v. AT&T Inc., No. CV 18-6975-ODW (KSx), 2022 WL 3013153, at *5 (C.D. Cal. June 13, 2022). The Court agrees with the proposition that “the more efficient procedure is to agree on search terms and custodians before conducting electronic data collection.” Id.

The ESI Checklist for the Rule 26(f) Conference that was incorporated into the Court’s Chambers Rules specifically directs the parties to meet and confer at the outset of the case regarding, among other things, “[t]he search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.”

The Court noted that it was apparent the parties did not engage in a fulsome meet and confer regarding the ESI checklist items, including relevant search terms, at the outset of this case. Plaintiff’s opposition attached correspondence between the parties regarding search terms that appears to post-date Plaintiff’s document production.

“Discovery into another party’s discovery process is disfavored,” and “requests for such ‘meta-discovery’ should be closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Jensen v. BMW of North America, LLC, 328 F.R.D. 557, 566 (S.D. Cal. 2019). “Generally, courts will only permit such discovery where there is some indication that a party’s discovery has been insufficient or deficient.” Id.

When addressing a request to compel disclosure of search terms employed by an opposing party to identify responsive documents, relevant considerations included (1) whether the request was made prior to the collection and production of responsive documents and (2) if the request for search terms was made after production, whether the party who sought disclosure identified some deficiency or insufficiency of the responding party’s production.

The analysis changes where a party sought post-production disclosure of search terms used by the opposing party to identify responsive documents. The Court agreed with Terpin that “there was no fundamental discovery requirement that a party provide its ESI search terms in litigation. Terpin, 2022 WL 3013153, at *5.

Rather, post-production “discovery on discovery” of search terms generally is warranted only on a showing that a party’s production has been insufficient or deficient. Here, Defendants failed to show deficiency in Plaintiff’s collection, review, and production of documents in Saharek’s possession. Saharek’s deposition testimony that he was not aware his emails were collected did not contradict Plaintiff’s assertion that it collected Saharek’s emails and produced responsive, non-privileged emails.

Additionally, Plaintiff has provided a declaration of its IT director, Garrett Scarbourough, who declared that, although he did not personally discuss the email collection with Saharek, he directly supervised and had knowledge of actions taken by the company’s former Network Security Supervisor to collect Saharek’s emails, which were discussed with Plaintiff’s in-house counsel and subsequently transferred to Plaintiff’s counsel.

In short, Defendants did not show that Plaintiff’s collection and production of Saharek’s emails was insufficient or deficient. As such, the Court did not compel Plaintiff to produce the search terms used to locate Saharek’s emails that were responsive to Defendants’ requests for production.