Defendants Ordered to Produce Documents Improperly Withheld Even Though Documents Were Identified By Agreed Upon Search Terms

10 Aug 2020
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In OJ COMMERCE LLC, and NAOMI HOME, INC., v. KIDKRAFT, LP and MID-OCEAN PARTNERS, LP, No. 19-60341-CIV-COOKE/SNOW (S.D. Fla. 2020), the District Court granted Plaintiffs’ motion to compel production of documents which were withheld by Defendants even though the documents were identified by search terms agreed to by the parties. 

In an antitrust case between two competitors in the toy industry, despite using search terms agreed to by the parties, Defendants withheld 94,000 out of 100,000 documents based on claims of irrelevance.  Following unsuccessful meet and confer, Plaintiffs moved to compel. Plaintiffs argued that “crucial documents” were withheld by Defendants and that Defendants’ relevancy determinations were unreasonably narrow. Defendants responded by arguing that Plaintiffs sought to compel non-responsive documents in light of what Defendants perceived to be Plaintiffs’ overbroad search terms. 

After a review of the parties’ voluminous submissions, the Court found that “the sheer volume of documents withheld by Defendants on the basis of relevancy is concerning since the documents were identified by agreed search terms” and that “[r]elevancy should be determined as broadly and liberally as possible.” Further, while not ascribing any intent on the part of Defendants to obstruct discovery, the Court stated that “withholding 94% of the documents that were identified in the ESI search on the basis of relevance may evidence a definition of relevancy that is too restrictive.”  

As a result, the Court ordered Defendants to produce the non-privileged, responsive documents that hit upon the parties’ agreed upon search terms (the remaining 94%) and any documents withheld on the basis of privilege to be presented in a privilege log.