Providing The Size Of Potentially Responsive Data After Performing Search by Gigabyte, Rather Than Document Hits, By a Third Party, Ruled Not In Bad Faith By Court  

9 Jun 2022

In RAVGEN, INC. v. STRECK, INC., No. 4:22CV3017 (D. Nebraska, March 29, 2022), before the Court was Plaintiff’s second motion to compel a third party’s response to subpoenas, Plaintiff’s request for attorney fees, and third party’s timeline for contemplated ESI search.

On Feb. 4, 2022, Plaintiff filed a motion to compel responses to subpoenas served on third party, Streck, along with a motion for expedited consideration. Plaintiff stated it needed the documents in Streck’s possession and control for litigation Plaintiff filed against two other parties. Streck a third party to each of these lawsuits.

The Court held a two-hour discovery conference on Feb. 25, 2022, and entered verbal rulings and a written order on Plaintiff’s motion. Under the terms of the order, Streck was required to provide an affidavit of compliance as to three categories of documents, and the parties were ordered to meet and confer on the search terms and scope of relevant ESI.

Following the discovery conference, Plaintiff sent a letter to Streck that demanded that Streck respond to the Court’s order by March 3, 2022, and that it respond to Plaintiff’s suggested ESI search terms on March 4, 2022. Counsel for Streck replied and stated it would comply with the Court order but believed that conducting an ESI search before agreeing on search terms was premature. Streck’s counsel stated he was available to discuss the ESI search terms on March 4, 2022.

On March 4, 2022, the hearing transcript was distributed to the parties, and the parties conferred on the ESI search terms. Plaintiff proposed a different Boolean search for ESI discovery.

On March 8, 2022, Plaintiff again demanded the affidavit required by the Feb. 25, 2022 order and asked for “an update on Streck’s search and production of ESI search terms, which Streck agreed to negotiate and run.”

On March 10, 2022, Streck’s counsel notified Plaintiff that Plaintiff’s proposed search was returning more than six gigabytes of information and proposed different search parameters. Plaintiff rejected Streck’s proposed terms and made further suggestions. Plaintiff also demanded that Streck report the outcome of running Plaintiff’s proposed search terms by the number of document hits rather than gigabytes of responsive information.

On March 15, 2022, Plaintiff advised Streck that Plaintiff would be requesting another hearing before the undersigned magistrate judge to discuss: “(1) Streck’s failure and refusal to timely provide Ravgen a declaration concerning Categories B-D as ordered by the Court; and (2) Streck’s failure and refusal to negotiate ESI in good-faith, including Streck’s failure and refusal to timely provide document hit-counts or propose reasonable narrowing amendments to Ravgen’s search term.”

On March 16, 2022, Streck’s counsel notified Plaintiff that the search protocol proposed on March 10, 2022, was still five gigabytes of information, and proposed different parameters.

On March 17, 2022, the parties sent their respective position statements to the Court in preparation for a March 18 hearing. After reading the statements, the Court cancelled the hearing and instructed Plaintiff to file a normal motion if the parties could not resolve the remaining issues.  On March 18, Plaintiff sent a modified ESI search protocol to Defendant and filed its formal motion to compel.

Streck’s counsel responded and stated that the search continued to produce gigabytes of data, and Plaintiff’s proposal made no effort to limit the ESI search to relevant documents. However, to compromise, Streck agreed to proceed with the ESI search. Streck’s affidavit stated it disclosed all documents and was provided to Plaintiff on March 28.  As a result, Streck argued that Plaintiff’s motion to compel was moot and the Court agreed. The affidavit was provided, and the parties agreed to the ESI search protocol.

Plaintiff also requested an order that requested Streck to produce, within seven days, all ESI responsive to Plaintiff’s subpoenas. Streck objected to the request and stated that the timeline was unreasonable. The Court agreed, and found that ordering Streck, a third party, to review gigabytes of information and produce responsive discovery within seven days was unreasonable because Plaintiff waited over three months before filing a motion to compel.

Plaintiff also claimed that Streck should be sanctioned for failing to negotiate in good faith as to the search terms for ESI discovery and failing to disclose the number of document hits rather than the total gigabytes identified when performing the search.

According to the Court, “[w]hether counted as document hits or gigabytes, Streck is entitled to perform a document review before disclosing ESI.”  The Court found that the number of gigabytes gleaned from a Boolean search provided sufficient notice to both Plaintiff and Streck of the burden Streck would encounter when reviewing the information and that while Plaintiff may have wanted more detailed information, Streck did not act in bad faith by ignoring Plaintiff’s demand for the number of document hits. 

The Court also found that Streck did not unreasonably delay negotiations over ESI terms. Streck did not provide immediate responses, but also did not ignore them. Before the motion was filed, Streck responded to every email within four business days. Finally, Streck ran search terms to determine if they narrowed the pool before it responded to Plaintiff’s proposals. Accordingly, Plaintiff was not entitled to sanctions on the claim that Streck failed to negotiate ESI search terms in good faith.