*1 In an order dated 10/30/17 (doc. # 107), we directed the parties to meet and confer regarding disagreements about the scope of searches for electronically stored information (“ESI”) and provide the Court with a joint motion regarding any issues they were unable to resolve. We have received the parties' joint ESI report and motion (doc. # 120), which reflects success in reaching agreement on a number of items. We address below five areas of disagreement that the parties have submitted for ruling.

1. Inclusion of Debbie Dean in MiMedx's ESI search. The parties have agreed that MiMedx will search ESI for 24 custodians; the dispute is whether the search should include a 25th person, Debbie Dean, Executive Vice President and Chief Compliance Officer. It is undisputed that Ms. Dean attended a meeting that defendant argues is significant to the events of this case, and by virtue of her position she is likely to have ESI relevant to the claims or defenses in the case. We agree, and do not find the plaintiff's arguments against including her in the search to be persuasive.

Plaintiff argues that anything relevant obtained from a search of Ms. Dean's ESI will only be duplicative of ESI obtained through searching the ESI of the other 24 custodians. To the extent that is correct, we expect that this would not add materially to the burden of review because the collection process should include a mechanism for eliminating duplicates. Moreover, plaintiff has not identified a principled basis to exclude Ms. Dean from the search but to include five other senior executives. As for the proportionality argument, we understand that the search MiMedx has agreed to undertake is extensive and will impose significant cost on it. But, plaintiff has failed to sufficiently explain the additional cost or burden that would be imposed by searching Ms. Dean's emails. And, to repeat, if the documents uncovered by a search of Ms. Dean's ESI truly are duplicative, the cost of additional review time should be minimal. On the other hand, if the search uncovers the existence of unique documents that are relevant, then plaintiff has failed to show what that is a cost that is unfair to bear in this case.

Accordingly, we order that the search by MiMedx for ESI include a search through Ms. Dean's ESI, using the same parameters and search terms used for the search of the ESI of other custodians.

2. Search of company-owned phones of MiMedx employees. Defendant asks that the plaintiff search for text messages on the company-owned cell phones of seven employees. Plaintiff offers to search the company-owned cell phones of two employees (the CEO and President), so long as the text messages are treated as attorneys' eyes only. We have reviewed the parties' arguments, and defendant has not persuaded us that the cost and burden of search for and producing text messages is proportional here, given the extensive email search that is being done.

Accordingly, we deny the request of defendant to require MiMedx to search the company-owned phones of the five additional employees at this time. We do so without prejudice to the defendant renewing the request in the future, if he can demonstrate a sound basis to require a search. We order MiMedx to direct those employees not to delete any text messages that may be responsive to a search.

*2 3. The use of certain search terms proposed in Set 2 and Set 3. The parties disagree about whether MiMedx should be required to search the ESI of certain custodians using certain additional search terms beyond those to which the parties have agreed (Joint ESI Report and Motion at 11-13 and Ex. F). While the parties refer to this dispute as involving search terms in Sets 2 and 3, the accompanying exhibit that lays out the terms (and the number of “hits” each one generates) only refers to a Set 2 and not a Set 3. We therefore only address the additional search terms in Set 2.

Plaintiff complains that the additional search terms proposed by defendant would require review of an additional 113,201 documents which are of little or no relevance, as they largely involve (a) an unemployment compensation hearing of a third party, and (b) a search for documents in which the custodians used language in referring to defendant that would reflect animus, which plaintiff says is irrelevant to defendant's claims. For his part, defendant says the unemployment compensation hearing is relevant because there was testimony in that hearing about MiMedx's allegations against Mr. Fox and whether certain products at issue were competitive with those of MiMedx, and that documents reflecting any animus on the part of the custodians toward Mr. Fox is relevant to his claims for tortious interference and for punitive damages.

We agree with defendant on the question of relevance. We also find that some of the search terms concerning the unemployment compensation hearing and evidence of animus generate only a modest number of hits; “Luke OR Tornquist AND unemployment generates 417 documents, and “ruin” generates 297. However, other terms that defendant says bear on animus generate many more documents: “punish” generates 888, “bankrupt* generates 2357, terminat* OR fire* generates 26,977 and destr.* generates 35,650. The terms pertaining to alleged animus do not appear to be limited to those documents that mention Mr. Fox, which may be one of the reasons that so many hits are generated. Moreover, the use of the terms “Halo” and “CPN” generate at total of 4,739 documents. Defendant says these terms are relevant to his claim that products of those companies are non-competitive, but the search for documents referring to those companies does not appear to be limited to the documents addressing whether their products are competitive.

Accordingly, we will approve the use of the following search term Set 2: (a) “Luke OR Tornquist AND unemployment,” (b) bankrupt*, ruin*, destr*, punish*, and terminat* OR fire*, but only with a connector that reasonably limits the hits from those terms to documents that use those terms in connection with Mr. Fox, and (c) CPN and Halo, but only with a connector that reasonably limits the hits from those terms to documents discussing those companies in terms of competition with MiMedx.

4. Level of confidentiality to be given to text messages from MiMedx's executives. Plaintiff asks that the text messages that are produced through the search of the company-owned cell phones of its President and CEO should be designated as attorneys-eyes only under the protective order. Plaintiff argues that this would be consistent with the treatment of defendant's phone logs, and that absent such a restriction, the defendant would misuse the texts by publicly airing them. Defendant responds that the attorneys-eyes only provision is appropriate for Mr. Fox's call logs, since they would contain large amounts of irrelevant information; by contrast, defendant asserts the texts generated and produced as a result of a targeted search of the cell phones would be relevant to the claims and defenses in the case and should not be subject to any restriction on use, much less an attorneys-eyes only provision.

*3 We are not satisfied that the texts produced as a result of the search of the CEO's and President's cell phones should be subject to the extreme limitation of an attorneys-eyes only provision, which applies only to confidential documents that contain highly competitive or sensitive information (doc. # 50: Agreed Confidentiality Order, ¶2(b)). We doubt that every text generated by the search would fall into that category. Moreover, any texts that are appropriately designated as confidential may not be publicly disclosed absent consent of the parties or court order (Id., ¶5(b)(9)). Thus, to the extent plaintiff is concerned that Mr. Fox would improperly use confidential material if he obtained access to it, the confidentiality order provides plaintiff with sufficient avenues of recourse were that to occur.

Finally, as for the blanket designation of Mr. Fox's phone logs as attorneys-eyes only, that is appropriate – at least in the first instance – for production of documents that likely will contain personal and irrelevant information. That said, if MiMedx contends that certain of the material produced from defendant's call logs are relevant and do not qualify for attorneys-eyes only treatment, plaintiff is free to raise that issue with the defense.

5. Information about custodian's cell phones searched or not searched. Defendant seeks to compel plaintiff to provide the make, model and serial number of any custodian's cell phone that is searched, as well as any custodian cell phone that is not searched (along with the reasons for declining to search that phone). Defendant has offered no good reason to provide that information for the cell phones that are searched. As for custodian's personal cell phones, which plaintiff asserts are beyond its custody or control to search, defendant says he needs this information in order to obtain information from those phones “outside the parties' ESI agreements” (doc. # 130: Joint ESI Report and Motion at 18). To the extent that defendant plans to issue subpoenas for custodian's personal phones, we express no opinion at this time as to whether defendant has a sound basis to do so. However, defendant has not explained why he needs make, model or serial number information in order to subpoena that information, or shown that MiMedx has possession, custody or control of the information concerning the custodian's personal cell phones.

We therefore deny the defendant's request.

CONCLUSION

For the foregoing reasons, we grant in part and deny in part the parties' various requests in the Joint ESI Report and Motion (doc. # 120). By 11/22/17, the parties shall file a joint report setting forth (1) the status of their efforts to adjust the search terms in order to eliminate unduly high number of “hits,” including the terms identified in Section 3 of this Order; (2) a proposed date to commence production of ESI pursuant to the searches; and (3) the status of the parties' implementation of the comparison protocol for StoneTurn and DTI images of certain devices.