Recently, we blogged about the plaintiff ESI at issue in Procaps S.A. v. Patheon, Inc., Case No. 12-24356-CIV-GOODMAN (S.D.Fla. February 28, 2014). In that case, the magistrate ordered the plaintiff to participate in crafting necessary search terms. There is now a follow up interlocutory order regarding Patheon’s Motion for Adequate Search terms dated March 18, 2014.
As background, Procaps is headquartered in Columbia, and its employees speak Spanish and use email communications in Spanish. Procaps sent over an initial list of eight English search terms, and said it would later translate the agreed-upon terms in Spanish. Patheon objected and argued that the proposed English terms were unreasonable. Patheon was adamant that Procaps’ American counsel must consult with the Columbian custodians to ascertain what words and phrases they commonly used in Spanish to discuss the facts at issue in the case.
After a few back-and-forth terse emails, Patheon characterized a phone call as Procaps’ counsel refusing that it had an obligation to confer with custodians regarding search terms. Procaps’ counsel disputed that this was an accurate portrayal of the conversation, but did not expand on what was inaccurate. Patheon asked for clarification as to what was “inaccurate,” but no response was forthcoming. In response, Procaps agreed to discuss with the Columbian custodians regarding correctly translating the search terms, but only if Patheon first agreed to the proposed English search terms. Patheon then filed the Motion for Adequate Search Terms, and the court held a multi-hour hearing.
At the hearing, Procaps’ trial attorney agreed that the law required counsel to discuss search terms with the company custodians. He also stated that he had two attorneys in Columbia during the past 10 days working with the custodians to verify the proposed search terms. He claimed that Patheon had a history of mischaracterizing their telephone conversations in email communications.
However, the magistrate judge felt that Procaps’ email chains dated prior to the Motion suggested that Procaps did not agree it must confer with the custodians regarding the proper search terms. The judge found that the email threads suggested it was reasonable for Patheon to conclude that Procaps’ counsel would only obtain input with its clients until after the English terms were agreed-upon. Although Procaps later claimed that it had substantial input from the custodians, this was only brought to light after the Motion was filed. Therefore, the magistrate granted the Motion and granted Patheon’s attorney fees in accordance with Rule 37(a)(5)(A), as it mandates attorney fee awards when “disclosure or requested disclosure is provided after the motion was filed.”
ILS – Plaintiff Electronic Discovery Experts
Did you know? In 2 Procaps eDiscovery Orders, the magistrate quoted Simon and Garfunkle, U2, Pink Floyd and the movie Cool Hand Luke.