On June 29, 2018, Magistrate Judge R. Steven Whalen of the Southern Division of the Eastern District Court of Michigan issued a protective order in a patent case, where the plaintiffs had requested relief from “unduly burdensome email discovery.”
The parties, all of whom manufacture both automobile roofs and roof-opening mechanisms for convertibles, had entered into a stipulated order governing the production of electronically stored information (“the ESI Order”). Under the ESI Order, each requesting party had to limit its email production requests to eight custodians as well as a total of ten search terms per custodian. Furthermore, the ESI Order provided that the search terms had to be “narrowly tailored to particular issues” and could not include company names or product names.
The defendant’s proposed search terms included the product names of plaintiff Webasto, which the court found to facially violate the ESI Order. Moreover, the defendant proposed search terms such as “Sale” (including as part of the word Sales), “Top,” “Fabric,” “Fold,” and “Drawing” (or dwg in the alternative).
Webasto attached to its motion the declaration of its attorney stating that it attempted in good faith to perform the defendant’s searches, and the volume of ESI returned for three of its custodians was 30 gigabytes, 13 gigabytes, and 10 gigabytes.
Webasto later attached to its reply brief the declaration of its attorney stating the number of individual records returned under the defendant’s proposed terms for five of its custodians: 118,336 documents, 44,373 documents, 44,460 documents, 245,109 documents, and 162,067 documents. Webasto’s attorney also stated that he reviewed the first 100 records in Webasto’s pre-production database and found that none of them were responsive or relevant to the case. He further stated that he had reviewed several emails involving persons with the word “Sales” in the job title of their email signature.
"The district court noted that “individual records may contain multiple pages each” and cited Webasto’s declaration that the search terms had returned more than 614,000 documents “comprising potentially millions of individual pages for production."
The district court noted that “individual records may contain multiple pages each” and cited Webasto’s declaration that the search terms had returned more than 614,000 documents “comprising potentially millions of individual pages for production.” The court found that many of the search terms were overbroad, and noted that “[u]sing ‘dwg’ as an alternative designation for ‘drawing’ (which is itself a rather broad term) would call into play files with common file extension .dwg.”
The court granted the plaintiffs’ motion for a protective order, ordering the parties to meet and confer in a good-faith effort to reasonably limit ESI production and to submit an amended discovery request. The court denied the plaintiffs’ motion for cost-shifting because of the opportunity the defendant had to reformulate its discovery request, but indicated it would reconsider the issue if the defendant did not reasonably narrow its requests.
The case is Webasto Thermo & Comfort North America, Inc. v. BesTop, Inc., No. 16-13456 (E.D. Mich. June 29, 2018). A copy of the opinion can be found here.
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