TravelPass Grp. v. Caesars Entm't Corp.
TravelPass Grp. v. Caesars Entm't Corp.
2020 WL 698538 (E.D. Tex. 2020)
January 16, 2020
Craven, Caroline M., United States Magistrate Judge
Summary
The court declined to make a determination as to whether all of the requested electronic documents previously produced were relevant to the claims or defenses in this case. The court ordered that defendants must serve requests for production on TravelPass in accordance with the Federal Rules and as anticipated by the E-Discovery Order negotiated by the parties and entered by the Court. The court also noted the importance of considering the proportionality of all discovery.
Additional Decisions
TRAVELPASS GROUP, LLC, PARTNER FUSION, INC. and RESERVATION COUNTER, LLC
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL.
v.
CAESARS ENTERTAINMENT CORPORATION, ET AL.
Case No. 5:18-cv-153-RWS-CMC
United States District Court, E.D. Texas, Texarkana Division
Filed January 16, 2020
Counsel
Christopher W. Patton, Jared Daniel Eisenberg, Jeremy Alan Fielding, Ruben Alan Garcia, Christopher John Schwegmann, Lynn Pinker Cox & Hurst, LLP, Dallas, TX, Jason H. Kim, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, Jeffrey R. Finley, Schneider Wallace Cottrell Konecky Wotkyns, Scottsdale, AZ, for TravelPass Group LLC Lynn Pinker Cox & Hurst LLP 2100 Ross Avenue Suite 2700 Dallas, TX 75201 214-981-3800, Reservation Counter LLC Lynn Pinker Cox & Hurst LLP 2100 Ross Avenue Suite 2700 Dallas, TX 75201 214-981-3800.Christopher W. Patton, Jared Daniel Eisenberg, Jeremy Alan Fielding, Ruben Alan Garcia, Christopher John Schwegmann, Lynn Pinker Cox & Hurst, LLP, Dallas, TX, Jason H. Kim, Todd Schneider, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, for Partner Fusion Inc. Lynn Pinker Cox & Hurst LLP 2100 Ross Avenue Suite 2700 Dallas, TX 75201 214-981-3800.
Lezlie Madden, Cozen O'Connor, Philadelphia, PA, Aaron S. Lukas, Cozen O'Connor, Washington, DC, David Reichenberg, David B. Sunshine, Cozen O'Connor, New York, NY, David Zerhusen, Cozen O'Connor, Las Vegas, NV, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Ty William Wilson, William Ellsworth Davis, III, The Davis Firm, PC, Longview, TX, for Caesars Entertainment Corporation.
Maria Wyckoff Boyce, Hogan Lovells US LLP, Houston, TX, Anna Kurian Shaw, Justin W. Bernick, Lauren Beth Cury, Hogan Lovells US LLP, Washington, DC, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Michael E. Jones, Robert E. Sterken, III, Potter Minton, a Professional Corporation, Tyler, TX, for Choice Hotels International Inc.
Brianne L. Kucerik, Carrie C. Mahan, Weil, Gotshal & Manges LLP, Washington, DC, Jennifer Parker Ainsworth, Wilson Robertson & Cornelius PC, Tyler, TX, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Olivia J. Greer, Randi Wolkenbreit Singer, Weil Gotshal & Manges LLP, New York, NY, for Hilton Domestic Operating Company Inc.
Diane Siegel Danoff, Dechert LLP, Philadelphia, PA, Cole Alan Riddell, Jennifer Haltom Doan, Joshua Reed Thane, Haltom & Doan, Texarkana, TX, Jeffrey L. Poston, Luke Van Houwelingen, Crowell & Moring LLP, Shari Ross Lahlou, Pro Hac Vice, Dechert LLP, Washington, DC, Jennifer Insley-Pruitt, Dechert LLP, New York, NY, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, for Marriott International Inc.
Robert Sean Hill, Holland & Knight LLP, Elisaveta Dolghih, Lewis Brisbois Bisgaard & Smith LLP, Kelly Franklin Bagnall, Dykema Gossett PLLC, Dallas, TX, Arthur Biller, Christopher Wood, Ian R. Rainey, Jeffrey H. Kass, John Cardinal Parks, Robin Alexander, Todd R. Seelman, William W. Mauke, III, Lewis Brisbois Bisgaard & Smith, LLP, Denver, CO, Bryan P. Sugar, Christian T. Novay, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Lance Lee, Attorney at Law, Texarkana, TX, Mark T. Goracke, Holland & Knight LLP, Boston, MA, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, R. Gaylord Smith, Lewis Brisbois Bisgaard & Smith LLP, San Diego, CA, for Red Roof Inns Inc.
Alexander G. Gray, Danielle Chattin, Emily Shoemaker Newton, Jeffrey S. Cashdan, Lohr A. Beck-Kemp, Russell Edward Blythe, King & Spalding LLP, Atlanta, GA, Deron R. Dacus, Shannon Marie Dacus, The Dacus Firm, PC, Tyler, TX, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, for Six Continents Hotels Inc.
Ann H. MacDonald, Gregory B. Dickinson, Michael K. Molzberger, Paula J. Morency, Schiff Hardin LLP, Chicago, IL, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Jessica A. Sprovtsoff, Robert J. Wierenga, Schiff Hardin LLP, Ann Arbor, MI, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, for Wyndham Hotel Group LLC.
Andrew Thompson (Tom) Gorham, Gillam & Smith LLP, Tyler, TX, Brendan A. McShane, Christopher S. Yates, Latham & Watkins LLP, San Francisco, CA, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, Lance Lee, Attorney at Law, Texarkana, TX, Melissa Richards Smith, Gillam & Smith, LLP, Marshall, TX, Sean M. Berkowitz, Latham & Watkins LLP, Chicago, IL, for Hyatt Corporation.
Craven, Caroline M., United States Magistrate Judge
ORDER
*1 The above-referenced cause of action was referred to the undersigned United States Magistrate Judge for pretrial purposes in accordance with 28 U.S.C. § 636. Before the Court is Defendants' Joint Motion to Compel (Docket Entry # 181). The Court, having reviewed the relevant briefing, is of the opinion the motion should be DENIED.
BACKGROUND
Plaintiff TravelPass Group, LLC and its predecessor or related entities, Reservation Counter, LLC, and Partner Fusion, Inc. (collectively, “TravelPass”) are downstream online travel agencies (“OTAs”) that sell hotel rooms from different chains to consumers in the United States. Docket Entry # 1, ¶ 45. According to TravelPass, there are two types of OTAs: (1) Gatekeeper OTAs, including Expedia and Priceline, that maintain direct relationships with major hotel chains to market hotel inventory online and (2) Downstream OTAs, like Plaintiffs, that have affiliate agreements with Gatekeeper OTAs for access to hotel inventory. Id., ¶ 46. Plaintiffs' business model includes bidding on branded keyword search results to attract hotel consumers to the hotel inventory on its websites. Id., ¶ 48.
TravelPass filed this antitrust case against several hotel chains: (1) Caesars Entertainment Corporation (“Caesars”); (2) Choice Hotels International, Inc.; (3) Hilton Domestic Operating Company, Inc.; (4) Hyatt Corporation; (5) Marriott International, Inc.; (6) Red Roof Inns, Inc.; (7) Six Continents Hotels, Inc. and (8) Wyndham Hotel Group, LLC (collectively, “Defendants” or “Defendant Hotels”). TravelPass alleges these hotel chains and others conspired to eliminate interbrand competition on keyword searches. Id., ¶ 1.
Specifically, TravelPass asserts Defendants conspired horizontally with each other not to engage in branded keyword advertising for a competitors' search term. Id. TravelPass also argues “the Defendant Hotels implemented a series of additional, or secondary, horizontal conspiracies under which Gatekeeper OTAs (1) agreed to stop bidding on branded search keywords and (2) also agreed to force Downstream OTAs to follow suit.” Id., ¶ 9. According to TravelPass, the Gatekeeper OTAs, at the instruction of the defendant hotels, removed the Downstream OTAs' access to hotel inventory if the Downstream OTAs did not stop branded keyword search advertising. Id., ¶ 149. TravelPass alleges these conspiracies harmed consumers as well as TravelPass' business. Id., ¶ 152; see also id., ¶¶ 151, 157, 160, 162–63.
TravelPass asserts the following claims against Defendants: (1) a violation of the Sherman Act, 15 U.S.C. § 1 (per se bid rigging/group boycott/market division); (2) a violation of the Sherman Act, 15 U.S.C. § 1 (unreasonable restraint of trade); (3) a violation of related Utah Antitrust Act § 1 and (4) tortious interference with prospective business relations. Id., ¶ 164–94. The document production deadline is March 17, 2020, and the fact discovery deadline is June 30, 2020. The pre-trial conference is set for April 6, 2021. Jury selection and trial are scheduled April 26, 2021. Docket Entry # 261.
MOTION TO COMPEL
*2 In their joint motion to compel, Defendants request the Court compel TravelPass to produce two sets of documents: (1) the documents TravelPass produced to the Federal Trade Commission (“FTC”) during the FTC's investigation into TravelPass's online advertising practices (the “FTC Documents”); and (2) the documents TravelPass produced in its litigation and arbitration with Expedia (the “Expedia Documents”). According to Defendants, the documents, which TravelPass acknowledges it has already collected and organized on an electronic platform, bear directly on the core harm and damages that TravelPass alleges in this case and “will show that this action is merely an attempt to shift blame to the [Defendant] Hotels for losses that TravelPass brought on itself or which it has already attributed to others.” Docket Entry # 181 at p. 2. Defendants further assert wholesale reproduction of the electronically-stored FTC Documents and Expedia Documents (totaling more than 148,000 email communications and other electronically-stored files) presents no burden on TravelPass because the documents have already been reviewed, organized, and are readily accessible on an electronic platform. Id.
TravelPass objects to Defendants' motion, while at the same time acknowledging some of the electronically-stored information may be relevant. TravelPass' main objection is Defendants' attempt to circumvent the Court's E-Discovery Order by refusing to provide custodians, search terms, a relevant time period, or otherwise comply with the terms of the order as related to the disputed documents. Docket Entry # 184 at p. 2. TravelPass represents it will comply with any ESI requests that conform with the parties' bargained-for E-Discovery Order, but TravelPass insists Defendants must first seek the requested documents through the ESI discovery procedure set forth in the E-Discovery Order. Docket Entry # 256; see also Docket Entry # 184 at p. 5 (“TravelPass has acknowledged that some of the Requested Documents may be relevant, and that TravelPass will search for and produce relevant documents contained in those sets of documents in accordance with the terms of the E-Discovery Order.”). TravelPass asserts Defendants seek the benefit of the E-Discovery Order they insisted on for their own ESI, “but suggest it should not apply to ESI within the possession, custody, and control of Plaintiffs.” Docket Entry # 184 at p. 5.
TravelPass further argues courts typically do not grant requests for this sort of “cloned” discovery from other litigation, even in cases not governed by an E-Discovery Order. Id. at p. 3. According to TravelPass, this is so because many of the emails and other electronically-stored files in the two document sets are not relevant to the claims and defenses in this case. Finally, TravelPass disputes Defendants' claim that the wholesale reproduction of the FTC Documents (totaling more than 24,000) and the Expedia Documents (totaling more than 124,000) presents no burden on TravelPass. Id. at pp. 3-4. TravelPass explains the FTC Documents were collected, reviewed, and produced to the FTC by a different law firm, and the Expedia Documents were largely collected, reviewed, and produced to Expedia by a lawyer who has since left the firm representing TravelPass in this case. Id. at p. 4; see also id. at p. 12 (stating it would take no fewer than 400 attorney hours to perform a thorough responsiveness review of the FTC Documents and approximately 1,910 attorney hours to perform a thorough responsiveness review of the Expedia Documents).
In their reply, Defendants assert courts order reproduction of previously produced materials where there is a “substantial relationship” between the matters. Docket Entry # 188 at p. 8 (citing Costa v. Wright Med. Tech., Inc., No. 17-CV-12524-ADB, 2019 WL 108884, at *1 (D. Mass. Jan. 4, 2019); also citing Fernandez v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 15-22782-CIV, 2017 WL 10775410, at *1-*2 (S.D. Fla. Mar. 14, 2017) (ordering reproduction of documents produced to FINRA); also citing Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 497-98 (D. Md. 2000) (ordering production of documents from parallel litigation relating to a different product where the defect theory was similar)). Defendants further assert TravelPass' “formulaic insistence that the Requested Documents be subjected to search term and review ‘limitations’ would actual expand the burden of production here.” Docket Entry # 188 at p. 9 (emphasis in original).
APPLICABLE LEGAL STANDARDS GOVERNING DISCOVERY
*3 Federal Rule of Civil Procedure 26(b) provides that the permissible scope of discovery includes “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Matter of AET, Inc., Ltd., No. 1:10-CV-51, 2018 WL 4201264, at *2 (E.D. Tex. June 8, 2018) (quoting FED. R. CIV. P. 26(b)(1)). In the Eastern District of Texas, Local Rule CV-26 also provides guidance in considering whether information is relevant for discovery. The rule provides information is relevant if:
(1) it includes information that would not support the disclosing parties' contentions;
(2) it includes those persons who, if their potential testimony were known, might reasonably be expected to be deposed or called as a witness by any of the parties;
(3) it is information that is likely to have an influence on or affect the outcome of a claim or defense;
(4) it is information that deserves to be considered in the preparation, evaluation or trial of a claim or defense; and
(5) it is information that reasonable and competent counsel would consider reasonably necessary to prepare, evaluate, or try a claim or defense.
Matter of AET, 2018 WL 4201264, at *2 (quoting E.D. Tex. Civ. R. CV-26(d)). Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Matter of AET, 2018 WL 4201264, at *2 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947))). Nonetheless, “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.” Matter of AET, 2018 WL 4201264, at *2 (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
In addition to being relevant, discovery must be proportional. Federal Rule of Civil Procedure 26(b) has been amended, effective December 1, 2015. Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 284 (N.D. Tex. June 26, 2017) (“Samsung II”). “Under Rule 26(b)(1), [as amended,] discoverable matter must be both relevant and proportional to the needs of the case—which are related but distinct requirements.”[1] Id. at 279. The burden is on the party resisting discovery to establish the discovery is not proportional. KAIST IP US LLC v. Samsung Electronics Co. Ltd., No. 2:16-CV-01314-JRG-RSP, 2017 WL 9937760, at *1 (E.D. Tex. Dec. 21, 2017) (citing Samsung Elecs. Am., Inc. v. Yang Kun Chung, No. 3:15-CV-4108-D, 2017 WL 896897, at *11 (N.D. Tex. Mar. 7, 2017) (“Samsung I”)); see also Samsung II, 321 F.R.D. at 284 (explaining the amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery).
“[J]ust as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can—and must—limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit—and the court must do so even in the absence of a motion.” Samsung II, 321 F.R.D. at 284 (citing Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011)). Thus, as amended, Rule 26(b)(2)(C) provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Samsung II, 321 F.R.D. at 284 (quoting FED. R. CIV. P. 26(b)(2)(C)).
*4 “The party seeking discovery, to prevail on a motion to compel, may well need to make its own showing of many or all of the proportionality factors, including the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, and the importance of the discovery in resolving the issues, in opposition to the resisting party's showing.”[2] Samsung II, 321 F.R.D. at 284. But Rule 26(b)(1) “ ‘does not place on the party seeking discovery the burden of addressing all proportionality considerations.’ ” Samsung I, 325 F.R.D. at 595 (quoting Carr v. State Farm Mutual Auto. Ins. Co., 312 F.R.D. 459, 467 (N.D. Tex. 2015) (quoting FED. R. CIV. P. 26, 2015 comm. note)).
Rule 26(c) further provides that the court “may, for good cause,” protect a party from “undue burden or expense” by issuing an order forbidding the disclosure or discovery of certain matters, specifying terms for the disclosure or discovery, or limiting the scope of disclosure or discovery. Matter of AET, 2018 WL 4201264, at *2 (quoting FED. R. CIV. P. 26(c)(1)(D)).
Federal Rule of Civil Procedure 34 governs requests for production of documents, electronically stored information, and tangible things. OrthoAccel Technologies, Inc. v. Propel Orthodontics, LLC, No. 4:16-cv-00350-ALM, 2017 WL 1294451, at * 2 (E.D. Tex. April 4, 2017). “The goal of discovery is to maximize relevant, nonprivileged matter while avoiding excess, non-relevant or privileged information.” Drake v. Capital One, National Association, No. 4:16-CV-00497, 2017 WL 1319560, at *1 (E.D. Tex. April 10, 2017). Considering this balance, courts often allow parties to use certain keyword searches to locate relevant electronically stored information. Id.
Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to other parties and all affected persons, to “move for an order compelling disclosure or discovery.” Star Creek Ctr., LLC v. Seneca Ins. Co., Inc., No. 4:17-CV-00607, 2018 WL 1934084, at *1 (E.D. Tex. Apr. 23, 2018) (quoting FED. R. CIV. P. 37(a)(1)). The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Star Creek, 2018 WL 1934084, at *1 (citing Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006)). Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted. Id.
DISCUSSION
The Court's Discovery Order requires that the parties produce, as part of their initial disclosure and without waiting discovery requests, the following:
Additional Disclosures. Each party, within forty five (45) days after the Scheduling Conference, shall provide to every other party the following:
*5 (a) a copy of all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to the pleaded claims or defenses involved in this action. By written agreement of all parties, alternative forms of disclosure may be provided in lieu of paper copies. For example, the parties may agree to exchange images of documents electronically or by means of computer disk; or the parties may agree to review and copy disclosure materials at the offices of the attorneys representing the parties instead of requiring each side to furnish paper copies of the disclosure materials;
(b) a complete computation of any category of damages claimed by any party to the action, making available for inspection and copying as under Rule 34, the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
(c) those documents and authorizations described in Local Rule CV-34.
Docket Entry # 112 at p. 4.
In this case, the parties also negotiated the terms of a separate order to streamline electronically stored information (“ESI”) production.[1] The Court's E-Discovery Order supplements all other discovery rules and orders and provides, among other things, as follows:
General ESI production requests under Federal Rules of Civil Procedure 34 and 45, or compliance with a mandatory disclosure order of this court, shall not include e-mail or other forms of electronic correspondence (collectively ‘e-mail’). To obtain e-mail, parties must propound specific e-mail production requests (per provisions 7-10 below).
A. With respect to ESI other than e-mail, i.e., non-email electronic documents from the files of individual custodians and electronic documents from reasonably accessible non-custodial electronic sources (collectively, ‘non-e-mail ESI’), the parties agree to meet and confer in good faith regarding reasonable and proportional limitations to the production of such data (including the number of custodians/sources to be searched, search terms and time period), consistent with Federal Rules of Civil Procedure 26 and 34.
Docket Entry #116, ¶ 5.
TravelPass asserts Defendants must seek the requested documents as set forth in the E-Discovery Order, which requires the parties propound specific e-mail production requests and propose reasonable and proportional limitations to the production of non-email electronic documents from reasonably accessible non-custodial electronic sources. Defendants assert this argument is “nonsensical.” Docket Entry # 188 at p. 9. According to Defendants, TravelPass does not dispute that the requested documents have already been collected and organized and are thus stored in “readily accessible” electronic files. Docket Entry # 188 at pp. 9-10. Defendants state the parties conferred on this issue, and Defendants made clear at that time that TravelPass' proposed limitations – subjecting the requested documents to custodial search terms and additional review – was not reasonable and would create more work because the documents have already been collected, reviewed, and organized. Id. at p. 10.
According to the language of the E-Discovery Order, compliance with a mandatory disclosure order of this Court shall not include e-mail or other forms of electronic correspondence. There is no exception in the E-Discovery Order regarding e-mails or other forms of electronic correspondence that have already been produced in previous litigation. Regarding non-email electronic documents, regardless of whether they are from the files of individual custodians or whether they are electronic documents from reasonably accessible non-custodial electronic sources (which Defendants urge is the situation here), the parties agreed to meet and confer in good faith regarding reasonable and proportional limitations to the production of such data (including the number of custodians/sources to be searched, search terms and time period), consistent with Federal Rules of Civil Procedure 26 and 34.
*6 What is more, asking for all documents produced in another matter is not generally proper. Goro v. Flowers Foods, Inc., No. 17-CV-02580-JLS-JLB, 2019 WL 6252499, at *18 (S.D. Cal. Nov. 22, 2019). As explained by that court, “the propounding party cannot meet its burden to establish relevance, as the propounding party is not in a position to even know what they are actually asking for.” Id. According to the court in Goro, “[t]here could be a number of reasons why documents appropriately requested and provided in another case—even if the subject matter of those cases seem to overlap—would be irrelevant or burdensome to provide in another case.” Id. The court further explained as follows:
If relevant and proportional documents exist in the custody or control of the responding party, the appropriate thing to do is to request those documents. The fact that the documents were or were not produced in other litigation is irrelevant. Moreover, compelling a responding party to do duplicate searches—one for responsive documents in their custody and control and one for all documents in their custody and control that were previously produced in other litigation—is definitionally unduly burdensome, as it would consume resources without providing any additional benefit to the propounding party.
Id.
As explained by another court, “ ‘[c]loned discovery’, requesting all documents produced or received during other litigation or investigations, is irrelevant and immaterial unless the fact that particular documents were produced or received by a party is relevant to the subject matter of the subject case.” King County v. Merrill Lynch & Co., Inc., No. C10-1156-RSM, 2011 WL 3438491, at *3 (W.D. Wash. Aug. 5, 2011) (quoting Midwest Gas Servs., Inc. v. Indiana Gas Co., IP99–0690–C–Y/G, 2000 WL 760700, at *1 (S.D. Ind. Mar.7, 2000)). “This is because, without more, the Court cannot ascertain whether the documents requested actually relate to Plaintiffs' claims and defenses.” King County, 2011 WL 3438491, at *3 (quoting Wollam v. Wright Medical Group, Inc., 2011 WL 1899774, 2 (D.Colo. 2011) (“Direct requests allow a court to consider the relevance of the information sought to the specific claims and defenses in the pending case.”)).
Other courts outside this circuit have reached the same conclusion. In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., No. MDL 2672 CRB (JSC), 2017 WL 4680242, at *1 (N.D. Cal. Oct. 18, 2017) (citing Chen v. Ampco Sys. Parking, No. 08-cv-0422-BEN (JMA), 2009 WL 2496729, at *2 (S.D. Cal. Aug. 14, 2009) (“Although Plaintiff identifies certain similarities between the state cases and this case, such similarities are not enough to require a carte blanche production of all documents from the state cases.”); also citing King County, 2011 WL 3438491, at *3 (“It may very well be that each and every document produced in the government investigations is relevant to Plaintiff's claims. However, Plaintiff must make proper discovery requests, identifying the specific categories of documents sought, in order to obtain them—and each category must be relevant to its claims and defenses.”); also citing Munoz v. PHH Corp., No. 1:08-cv-0759-AWI-BAM, 2013 WL 684388, at *5 (E.D. Cal. Feb. 22, 2013) (ordering production of documents from a related investigation where plaintiffs made efforts to narrow their requests to “only those documents that Defendants produced [in the investigation] in response to thirteen (13) of the CFPB's thirty-three (33) Document Requests”)).
Here, the Court declines to make a determination at this time whether all of the requested electronic documents previously produced are relevant to the claims or defenses in this case. Plaintiffs concede much of it may be. However, the Court finds that an informal request that seeks wholesale duplicates of discovery produced in other litigation is improper as failing to make the requisite showing of relevance. Defendants are not entitled to the wholesale reproduction of all of the FTC Documents and Expedia Documents simply because there may be overlap between the issues in those cases and those in this case. In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., 2017 WL 4680242, at *1. Instead, Defendants must serve requests for production on TravelPass in accordance with the Federal Rules and as anticipated by the E-Discovery Order negotiated by the parties and entered by the Court. Id. at *2.
*7 Accordingly, it is
ORDERED that Defendants' Joint Motion to Compel (Docket Entry # 181) is DENIED.
SIGNED this 16th day of January, 2020.
Footnotes
The 2015 amendments to Rule 26 deleted “from the definition of relevance information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ because ‘[t]he phrase has been used by some, incorrectly, to define the scope of discovery’ and ‘has continued to create problems’ given its ability to ‘swallow any other limitation on the scope of discovery.’ ” Robroy Indus.-Tex., LLC v. Thomas & Betts Corp., No. 2:15-CV-512-WCB, 2017 WL 319064, at *4 (E.D. Tex. Jan. 23, 2017) (quoting FED. R. CIV. P. 26, 2015 comm. note).
While it is a good practice for a movant to explain the relevance and proportionality of its discovery requests, and while a failure to appropriately address Rule 26(b)(1) proportionality factors may be determinative in a proportionality analysis and result in the motion to compel being denied on its merits, see Carr, 312 F.R.D. at 463–69, “ ‘[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id. at 467 (quoting FED. R. CIV. P. 26, 2015 comm. note); see also OrthoAccel, 2017 WL 1294451, at *2 (noting the federal rules follow a proportionality standard for discovery).
During those negotiations, Defendants proposed fewer custodians and fewer search terms over TravelPass' objections. The Court adopted Defendants' proposed limitations on custodians and search terms.