Redaction Log and Search Terms Ordered in Benecol Spreads Class Action
Martinelli et. al. v. Johnson & Johnson et. al., Case No. 15-1733 (E.D. Cali., Feb. 10, 2017) is a class action lawsuit initiated by purchasers of Benecol margarine products who alleged that the products contain misleading labeling due to their statements that the products contain no trans fats and no trans fatty acids, and that the products are safe for human consumption. Plaintiffs allege that the product contains partially hydrogenated oils, which do contain trans fats and which are not recognized as safe for human consumption by the FDA because of increased risk of heart disease.
Plaintiffs filed a Motion to Compel against Defendants, alleging that Defendants failed to produce responsive documents as required by a previous court order granting a previous motion to compel. Defendants argue that they fulfilled the obligations set forth in the order, as the court had adopted a stipulated ESI protocol and Defendants applied the agreed-upon list of ESI search terms. The parties had also agreed upon 12 records custodians. At the hearing on the Motion, the court pointed out that the previous order did not limit the production to the items discovered by use of the search terms, but Defendants’ counsel argued that Defendants had no way of locating more responsive documents without the use of search terms. Therefore, the court ordered the parties to meet and confer and develop a list of additional search terms and custodians so that Defendants could conduct an additional search and produce more documents.
Defendants also redacted significant “irrelevant” information in the documents it produced to Plaintiff. The court noted that it is generally frowned upon for parties to unilaterally redact documents when there is a protective order in place. The court ordered Defendants to produce to Plaintiff a redaction log identifying each redaction including the redaction of email attachments and explaining the reasoning for the redaction. The court warned Defendants that if it did not comply, the court could compel production without redaction.