The crux of this motion is buried under the usual volley of accusations of improper motives and hidden agendas[1] and was, at first blush, difficult for the court to ferret out. However, it appears that Dawgs complains of a legitimately concerning “turn of phrase” employed by Crocs with respect to Crocs' duty to search for and produce electronically stored documents requested in discovery.

Crocs repeatedly avows that it has and will produce “non-custodialresponsive documents.” (Resp. at 5.) But it also claims that “many of Dawgs's RFPs seek information that is far more likely to be located, if anywhere, in individual persons' email or electronic documents.” (Id.) This court is not familiar with the term “non-custodial” as Crocs seems to be using it in this context with application to its duty to produce electronically stored documents.

“In the typical case, ‘[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronic data and documents.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 628 (D. Colo. 2007)(citing THE SEDONA PRINCIPLES: BEST PRACTICES, RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION (Sedona Conference Working Group Series July 2005) at 31). In Cache La Poudre, Defendant Land O'Lakes, as a regular part of their business, routinely wiped clean the computer hard drives of employees who were no longer with the company, even after the duty of preservation arose in that case, and even for former employees who were believed to possess relevant information due to their key roles in the issues presented by the case. However, Land O'Lakes counsel's was not made aware of the existence of approximately 400 back up tapes of computer files that were not searched for discoverable material. The court found that counsel failed to comply with his “on-going responsibility to take appropriate measures to ensure that the client has provided all available information and documents which are responsive to discovery requests.” Cache La Poudre, 244 F.R.D. at 630.

*2 Email is a collective term that can encompass both email and other forms of electronic correspondence.[2] See Lifetime Prod., Inc. v. Russell Brands, LLC, No. 1:12–CV–00026–DN–EJF, 2013 WL 12131594, at *2 (D. Utah June 26, 2013). Email is a sub-category of ESI. See Chura v. Delmar Gardens of Lenexa, Inc., No. CIV.A. 11–2090–CM–DJ, 2012 WL 940270, at *3 (D. Kan. Mar. 20, 2012). The primary reason that certain email “accounts” associated with an individual are searched separately from other email accounts derives from the nature of email, the large volume of correspondence that is often necessary to be searched, and the way in which email is usually stored within software by user rather than topic. Calling the individuals associated with certain email accounts “custodians,” however, is often factually inaccurate. The reality is that the company is the custodian of all emails in all accounts associated with the company for both employees, former employees, and often even for contractors or others for whom separate email accounts have been established. Of course, if an employee uses his or her personal email accounts for company business then that person may actually be a custodian of the email account. Nevertheless, when a company identifies that person as one who has relevant email information, not only the company email account but also all other accounts likely to contain company information may be searched.[3]

The same cannot be said for other electronically stored documents. While not every company has a network, and in some companies individual laptop computers must be separately searched, this is not the same as simply searching email accounts associated with certain individuals. When an unobjectionable request for production of documents is served on a company for documents, it is the company's responsibility to determine where such documents responsive to the request could reasonably be located and to conduct a reasonable search. Cache La Poudre, 244 F.R.D. at 626, 630 (imposing on parties an affirmative duty to seek information reasonably available through employees, agents, and others subject to their control). Such a search is not limited to a certain named individual; it is up to the company to arrange for a thorough search of all places where the documents responsive to the requests may reside.

This court has no reason to believe that Crocs is not faithfully producing discovery in this case. In fact, given the convoluted and labyrinthine wording of almost every document request submitted by Dawgs, it appears Crocs is doing an admirable job of foraging through Dawgs' requests. However, this court strikes the objections of Crocs to the extent the term “subject to the parties reaching agreement regarding the custodians and search terms to be used in connection with Crocs' production of ESI” (i.e., Mot., Ex. 1, Response to RFP 12, et al.) refers to ESI other than email. The Stipulated ESI and Email Production Order in this case [Doc. No. 235] states “[b]efore producing email ...,” the parties will identify the email accounts which will be searched by agreed keyword analysis. (Id., ¶ 6.) This provision applies only to email and not to Crocs' obligation with respect to any other electronically stored information. Outside of paragraphs 6 and 7, the Stipulated ESI and Email Production Order applies to the format and manner of production of ESI, but does not in any way curtail or circumscribe Crocs' ongoing duty to preserve and produce their own electronic data and documents, notwithstanding the location or “custodian” of such ESI.

Therefore it is ORDERED

*3 “Counterclaim Plaintiffs' (“Dawgs”) Ninth Motion to Compel: Compel Counterclaim Defendant Crocs to Produce Doucments (sic) and Things” [Doc. No. 382] is GRANTED.