In ANYWHERECOMMERCE, INC. v. INGENICO, INC., Civil Action No. 19-cv-11457-IT (D. MA. June 3, 2021) before the Court was Plaintiffs’ Motion for Reconsideration of the Court’s August 31, 2020 order regarding Plaintiffs’ Motion to Compel Production of Documents.
At issue was whether the discovery sought by Plaintiffs could be ordered for production for documents in possession of the domestic as opposed to foreign Defendants under the European General Data Protection Regulation (“GDPR”).
In their original motion to compel, Plaintiffs complained that domestic Defendants Ingenico, Inc., and Ingenico Corp., and French Defendant Ingenico Group S.A., were improperly refusing to comply with request for production of documents. Defendants contended GDPR precluded Defendants from producing the requested materials. Plaintiffs represented to the Court that they expected a substantial amount of the requested documents in the United States and in the possession of the foreign Defendants.
In its August 2020 Order, the Court split its analysis into two parts: documents in possession and control of the domestic Defendants and those documents in possession and control of the foreign Defendant. For the reasons set forth in its August 2020 Order, the Court considered the elements set out in the Restatement (Third) of Foreign Relations Law § 442(1)(c) as to the former and ordered production of the document maintained by the domestic Defendants.
Plaintiffs subsequently sought reconsideration of the August 31, 2020 Order asserting that “the key decisionmakers . . . and the important documents and evidence relevant to Plaintiffs’ claims are in France.” Although Defendants disagreed, the Court determined that reconsideration was appropriate given that the August 2020 Order was based on the Court’s misapprehension that discovery in this case could meaningfully proceed while also being limited to the domestic Defendants.
In its reconsideration analysis, the Court determined that all but one of the factors set forth in Restatement (Third) of Foreign Relations Law § 442(1)(c) addressed in its prior Order was not affected by whether its original analysis was split into two between materials in the custody of the domestic or foreign entities. First, the documents requested continue to be of importance to the litigation. Second, Defendants did not contend that the discovery requests raised concerns about disclosure of employees, customers, or third-party partners that were uninvolved in the events giving rise to the present dispute. Third, Plaintiffs had no other mechanism in retrieving the relevant information. And, fourth, the United States continues to hold an interest in delivering an adequately informed decision as to the rights of the parties to this action.
The only factor where the Court’s analysis turned for the Reconsideration motion was whether the information originated in the United States or abroad. However, for that factor, the parties no longer disputed that many, if not most, of the responsive document either originated abroad or were located abroad. Moreover, the location of materials did not override the other four factors.
The Court also noted that, in any case, consistent with the objectives of the GDPR, the parties had already agreed to, and Court endorsed, a protective order which provided that Defendants could identify private and/or confidential documents subject to the GDPR as “Highly Confidential-Attorneys’ Eyes Only” with specific procedures in place as to how any such material may be disseminated. Such a protective order, the Court noted, provided Defendants the protections of the GDPR.
Defendants’ alternate proposal that the Court limit any order compelling the production of documents to those belonging to the custodians identified in the parties’ initial disclosures, was rejected. Citing Silvagi v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 240 (D. Nev. 2017)(“The purposes of the initial disclosure requirements are important and clear. Parties should be put on notice of the factual and legal contentions of the opposing party.”), the Court rejected Defendant’s argument stating that the “argument is not persuasive since initial disclosures are primarily a tool for a party to share the factual and legal contentions underlying their own cases, not witnesses or material that may be helpful to the opposing party.” [Emphasis in original].
Accordingly, Plaintiffs’ Motion for Reconsideration was granted.