Motion to Compel Linear Review of Text Messages And Complete Production of Calendar Entries Without Application of Search Terms Denied

24 Mar 2023

In IN RE:DIISOCYANATES ANTITRUST LITIGATION,  Master Docket Misc. No. 18-1001, MDL No. 2862 (Jan. 26, 2023, W.D. Pennsylvania), Plaintiffs sought an order compelling Certain Defendants to produce text messages (after only a linear review) and the full calendars of approximately 45 custodians covering a five-year period pursuant to their First Request for Production of Documents for Unstructured Data (“Document Requests”) dated Jan. 30, 2020.

Those calendars and text messages were already subject to search term review, and BASF and WCA substantially completed their production of responsive documents therefrom in March 2022 and Huntsman did so in April 2022. Huntsman produced approximately 27,190 calendar entries (44,732 with families) and 1,543 text message transcripts (1,803 with families). WCA produced 5,483 calendar entries (6,254 with families) and 3,453 text message transcripts consisting of 39,293 messages. BASF produced 19,717 calendar entry documents (inclusive of attachments) and 473 text message documents.

Plaintiffs contended, however, that the document productions yielded by Certain Defendants’ search term review were inadequate and that production of text messages and full custodial calendars were necessary.

At issue were documents that were preserved but not produced because Certain Defendants represented that those documents did not contain any of the applied search terms. In this regard, Huntsman had approximately 61,697 unproduced calendar entries and approximately 85,837 (inclusive of families); WCA had approximately 38,276 unproduced calendar entries and 97,658 unproduced mobile message transcripts consisting of approximately 676,016 individual text messages; and BASF had approximately 269,000 unproduced calendar entry documents and more than 6,300 unproduced text message documents.

Certain Defendants contended their search term-generated productions were the result of agreements between the parties, that producing all remaining calendar entries and text messages irrespective of relevant and in contravention of the parties’ Stipulated Order Regarding Discovery of Electronically Stored Information (“Stipulated ESI protocol”), was beyond the permissible scope of discovery, and that seeking to compel full production of these documents long after conducting their agreed-upon search term review and production was untimely.

The Court found that as with other aspect of their discovery efforts, counsel for the parties engaged in extensive discussions and correspondence regarding Plaintiff’s Document Requests, Certain Defendants’ objections thereto, and the parties’ subsequent agreement to use search terms to winnow the universe of documents for further review and production.

The parties did so in the context of conferring and reaching agreements on a myriad of other related discovery matters such as the identities of custodians and their Stipulated ESI Protocol.

Huntsman, for instance, wrote to Plaintiffs on Nov. 22, 2021, in response to Plaintiffs’ correspondence dated Oct. 29, 2021, and to follow-up conversation between counsel on Nov. 11, 2021, confirming its acceptance of Plaintiffs’ proposed compromise to apply search terms, but not technology-assisted review (“TAR”), to identify calendar entities and text messages for further review and production.

WCA and Plaintiffs confirmed their own agreement in this regard as reflected in Plaintiffs’ correspondence dated July 23, 2020, and by subsequent correspondents between these parties.

BASF’s course of dealing and written communications with Plaintiffs also reflected an agreed upon understanding that search terms would be used to identify, review, and produce relevant calendar entries. The parties also conferred regarding the search terms to be used, and certain of Plaintiffs’ proposed search terms were ultimately incorporated into BASF’s review process.

Despite Certain Defendants’ efforts to search for, review, and substantially produce voluminous response calendar entries and text messages in accordance with their agreements with Plaintiffs to use search terms to winnow the universe of calendar entries and text messages for further review and production, Plaintiffs subsequently reversed their position concerning Certain Defendants’ use of search terms. Plaintiffs insisted on a linear review and production of text messages and the full production of custodial calendar entries.

The scope and limits of discovery are defined by Rule 26(b)(1) of the Federal Rules of Civil Procedure. Rule 26(b)(1) provides, in relevant part: “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). When evaluating proportionality, the court considers “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

Here, the parties did not dispute that calendar entries and text messages of Certain Defendants’ custodians may be relevant and discoverable. What they did dispute was whether Plaintiffs may insist on the wholesale production of such calendar entries and the full linear review of all such text messages without first applying search terms to winnow those documents for further review and production.

Plaintiffs contended that the Court should compel the full production of calendar entries and the production of text messages after a linear review because courts routinely order the full production of calendars without first applying search terms and because the search term review improperly risks excluding relevant evidence. The Court disagreed.

First, Plaintiffs contended that courts routinely order the production of entire calendars without the application of search terms. The Court noted the cases cited by Plaintiffs were unpersuasive.

The pretrial order referred to in In re Generic Pharm. Pricing Antitrust Litig., No. 2:16-md-0272724-CMR (E.D. Pa. Feb. 9, 2018) (ECF No. 560), was issued when that court denied a request to stay all discovery and instead permitted the plaintiffs to move forward with 91 document requests including one such request seeking “all calendars.” It did not address any pertinent relevance objections and offers no meaningful reasoning or precedent for this Court’s consideration here.

Plaintiffs’ reliance on In re Rail Freight Fuel Surcharge Antitrust Litig., Misc. No. 07-489, 2009 WL 10703132, at *3-4 (D.D.C. July 13, 2009) was likewise unhelpful because the court in that case ordered the production of calendars from a small subset of document custodians while permitting the exclusion or redaction of the custodians’ personal entries and made this ruling early in the case and not, as here, after the parties have already substantially completed their review and production of such documents. 

There was nothing in either of these antitrust cases that directed or persuaded the Court to require wholesale production of documents without first using search terms. The non-antitrust cases cited by Plaintiffs were also unhelpful. Plaintiffs essentially contended that the use of search terms were per se inadequate but offered no controlling or persuasive authority to support their contention.

Second, the Court noted while it was true that the use of search terms was imperfect and may have excluded some relevant documents, not using search terms when reviewing a voluminous universe of documents also risked expending time and resources to cull through and produce large amounts of irrelevant documents.

Consequently, search term methodologies are routinely used, particularly in large and complex commercial and antitrust cases, as an acceptable if not preferred approach. Only a reasonable search for responsive information pursuant to a reasonably comprehensive search strategy is necessary, and “in an era where vast amounts of electronic information is available for review, . . . [c]ourts cannot and do not expect that any party can meet a standard of perfection.” Enslin v. Coca-Cola Co., No. 2:14-cv-06476, 2016 WL 7042206, at *3 (E.D. Pa. June 8, 2016) (citation omitted).

Importantly, here, the parties previously agreed upon the Stipulated ESI Protocol which did not exclude calendar entries or text messages, and which required that they “discuss and attempt to reach an agreement on search methodologies with the goal of limiting the scope of document collection, review for production, . . . and facilitating production in accordance with the deadlines set by the Court . . . with the goal of identifying responsive documents.” (ECF No. 313 at 5, ¶5(a)).

This Stipulated ESI Protocol also provided for a process by which the parties were to develop and apply search terms, as well as a dispute resolution process. Plaintiffs and Certain Defendants did confer and ultimately agreed to use search terms for the identification, review, and production of calendar entries and text messages and Certain Defendants relied upon those agreements for review and produce voluminous responsive documents accordingly.

Plaintiffs presented no basis that persuaded the Court to disrupt those agreements and expand Certain Defendants’ review and production obligations by obviating the use of search terms at this far-along juncture. MAO-MSO Recovery, LLC v. Mercury Gen., 2019 WL 1423772, at *3 (C.D. Cal. Feb. 19, 2019); Genzyme Corp. v. Lupin Ltd., 2011 WL 2490603, at *3 (D. Md. June 21, 2001).

Although the Court found that Plaintiffs and Certain Defendants have agreed to use search terms for the selection and production of custodial calendar entries and text messages and would hold the parties to those agreements, the record also reflected disagreements between Plaintiffs and Certain Defendants as to the adequacy of the search terms that were applied and Plaintiffs’ reservation of rights to pursue follow-up requests.

The Court also found that it was evident that the parties were not wholly in agreement as to the actual search terms that were to be utilized despite agreeing to the use of those search terms. Within this context, the parties expressly contemplated that Plaintiffs would likely propound follow-up discovery requests.

In the Court’s estimation, however, Plaintiffs did not demonstrate on the current record that Certain Defendants’ search terms or search methodologies pertaining to calendar entries or text messages were unreasonable or inadequate. Even so, the parties’ communications demonstrated that the parties contemplated Plaintiffs making follow-up discover requests based upon their review of calendar entries and text messages identified and produced after Certain Defendants applied their search terms.

According to the Court, such targeted follow-up discovery request for discernably relevant information, rather than the wholesale production of documents that would certainly yield significant amounts of irrelevant material, was more aptly proportional to the needs of this case.

While the Court acknowledged that antitrust cases, such as this one, which involved allegations of nationwide anticompetitive collusion in the MDI and TDI industry, are matters of public importance in which the amount in controversy was significant, the Court also considered the parties’ recourses and their relative access to relevant information. Most importantly here, however, was the burden or expense of re-reviewing the entire universe of calendar entries and text messages sans search terms when balanced against the likely benefit of doing so.

Given the substantial time and effort undertaken to search for and produce calendar entries and text messages thus far, and the anticipated time and expense to re-review and produce a broader universe of such documents, such an endeavor was outweighed by the likely benefit of such efforts. Rather, a targeted, follow-up approach as the parties expressly contemplated, was more proportional to the need sot the case at this juncture.

Accordingly, while the Court did not compel certain Defendants to undertake a linear review of voluminous text messages and to produce such text messages along with the full custodial calendar entries without application of their previously applied search terms, and while the Court was not directing Certain Defendants to re-review the full universe of documents through the lens of Plaintiffs’ proposed but rejected search terms, the Court did recognize that Plaintiffs may propound targeted follow-up discovery requests that seek to elicit relevant evidence that is proportional to the needs to the case.