I. BACKGROUND

The Technology Park X Limited Partnership (“Tech Park X”) is a limited partnership, created by the Tech Park X Limited Partnership Agreement (“LP Agreement”) in which the Traverses hold a 38 percent share, and defendants The Gutierrez Company (“TGC”), Arturo J. Gutierrez (“Arturo”), and Arthur J. Gutierrez (“Arthur”), among others, hold smaller stakes.[3] Amended Complaint ¶ 12. TGC serves as the General Partner of Tech Park X and is responsible for the management of Tech Park X. Id. at ¶ 22.

The Plaintiffs allege, inter alia, that the Defendants improperly inflated Tech Park X's operating expenses and maintenance expenses through inflated invoices. Id. at ¶ 27. They also allege that the Defendants caused Tech Park X to enter into contracts that were in excess of reasonable and competitive market rates. Id. In addition, the Plaintiffs claim that the Defendants caused Tech Park X to incur costs for a water main break caused by the Gutierrez Construction Co., Inc.’s (“GCCI”) negligence. Id. Plaintiffs claim that the Defendants concealed these activities from Plaintiffs, withheld information from Plaintiffs, and misappropriated Tech Park X funds. Id.

Plaintiffs served their first request for production of documents to Defendants (the “First Request”) on June 1, 2018. Affidavit of Jason Koral in Support of Plaintiffs’ Motion to Compel Discovery (Docket No. 472) (“Koral Aff.”) at ¶ 2. Defendants served their written response on September 21, 2018. Id. The deadline for completion of fact discovery expired on November 8, 2019. Docket No. 202.

On June 1, 2020, Defendants belatedly produced two email chains to Plaintiffs. Docket No. 471 at 11; Docket No. 472-9. Defendants’ counsel indicated that the two emails were inadvertently not included in their email production. Docket No. 472-9 at 2. Plaintiffs argue that the late production of those emails, as well as certain representations made in a declaration submitted by Defendants’ counsel in connection with another motion, “implicate[ ] the integrity of Defendants’ entire document production.” Docket No. 471 at 4; see also id. at 9-13.

Plaintiffs request an order compelling the Defendants to (1) produce documents responsive to Request for Production of Documents Nos. 3, 7, 14, 24, 25, 26, and 27 of their First Request; (2) submit to the Court and Plaintiffs a full disclosure of the steps taken to collect, review, and produce email and non-email documents responsive to the First Request, including identification of custodians and search terms; (3) consult in good faith with Plaintiffs within seven days to devise a protocol for locating and producing any responsive documents that were omitted from Defendants’ document production; (4) produce within 21 days any responsive documents previously withheld; and (5) pay the Plaintiffs’ attorney's fees and costs associated with this motion. Docket No. 470 at 1-2.

II. ANALYSIS

*2 Plaintiffs argue that the recently produced emails, as well as Defendants’ counsel's declaration, show that the Defendants’ production of documents in this case was deficient. First, they argue that counsel's statement that a 2014 appraisal of Tech Park X was not produced based on an understanding that the appraisal was part of a “category of documents that Plaintiffs did not want to receive,” indicated that Defendants had withheld from production entire categories of documents without informing Plaintiffs. Docket No. 471 at 10; see also id. at 18-19. Second, Defendants have failed to identify which documents were withheld based on objections. Id. at 14-15. Third, Defendants’ explanation regarding why the two emails recently produced were inadvertently omitted from the original production shows that they must have used restrictive search terms and protocols. Id. at 14-16. Finally, the belatedly-produced emails identify additional responsive and relevant documents that have not been produced. Id. at 16-17.

A. Whether Defendants Intentionally Withheld Entire Categories of Documents

Plaintiffs claim that Defendants surreptitiously withheld responsive documents on the basis that they had provided such documents to Plaintiffs prior to litigation. Docket No. 471 at 10. Plaintiffs’ claim is based on a representation made by Defendants’ counsel in connection with another motion, where Attorney Tuxbury explained that a 2014 appraisal of Tech Park X was not produced based on an understanding that the 2014 appraisal “fell within the category of documents that Plaintiffs did not want to receive, once again, from the Defendants in discovery.” Docket No. 472-8 at ¶ 4. According to Defendants, however, the 2014 appraisal was not included in the Defendants’ production because they retained the 2014 appraisal in paper form only, such that it did not appear in Defendants’ search of electronic documents. Declaration of James L. Tuxbury, Esq. (Docket No. 534-1) (“Tuxbury Decl.”) at ¶ 14. It did not occur to Defendants to scan the paper copy because Defendants knew that Plaintiffs already had a copy of it, given Plaintiffs’ explicit reference to it in their Amended Complaint and Plaintiffs’ production of a copy of it to the Defendants in September 2018. Id. At the July 30, 2020 hearing, counsel for Defendants represented that they did not fail to produce any other responsive documents based on an understanding that Plaintiffs had already received those documents pre-litigation and Plaintiffs have not presented any evidence to the contrary.

Plaintiffs also suggest that Defendants withheld documents based on boilerplate objections but failed to indicate which documents were withheld in violation of Rule 34(b)(2)(C). Docket No. 471 at 14-16. Again, Defendants represented that they have not withheld documents based on boilerplate objections and Plaintiffs have not presented any evidence to the contrary.

In an effort to show that Defendants have surreptitiously withheld documents, Plaintiffs point to certain subcontractor documents that the Defendants acknowledge they have not produced. Docket No. 471 at 19; Docket No. 539 at 11. However, the Defendants objected to the production of such documents on burden and proportionality grounds. See Docket No. 534 at 11-12. As part of the parties’ back and forth regarding this issue, on June 20, 2019, Plaintiffs’ counsel stated:

Docket No. 472-6 at 3 (emphasis added). Plaintiffs now argue that all they agreed to do was to “defer the timing of production of subcontractor documents.” Docket No. 471 at 16. This argument is inconsistent with the language of Plaintiffs’ email. A reasonable reading of the email is that Plaintiffs’ counsel was deferring further response to the request until they could determine whether the contract and bid information would satisfy their needs and obviate the need for further subcontractor invoice documents. It was, therefore, incumbent on Plaintiffs to go back to Defendants to further request those documents and file a motion to compel, if necessary, if the contract and bid documents did not in fact satisfy their needs. Plaintiffs did not do so.

*3 To the extent that Plaintiffs now argue that Defendants’ burden and proportionality objections are improper, it is too late. Plaintiffs have been aware of this issue since well before the deadline for completing fact discovery. The two emails that gave rise to this motion have nothing to do with the request for subcontractor documents. Plaintiffs may not argue that they were unable to bring such a motion to compel until now.

B. Whether Defendants’ Search For Emails Was Reasonable

Plaintiffs also argue that Defendants’ explanation for how the two email chains were withheld suggests that the Defendants’ search terms were too restrictive and, therefore, it is likely that Defendants have withheld many more responsive emails. Docket No. 471 at 18. This argument is based on the fact that Defendants did not use the standalone search term “Tech Park” in their keyword search. See id. Rather, when utilizing the search term “Tech Park,” Defendants employed the qualifiers of “Tech Park X,” “Technology Park X,” “600 Tech Park,” and “600 Technology Park.” Tuxbury Decl. at ¶ 4. Plaintiffs also argue that Defendants improperly concealed this restrictive use of search terms and protocols. Docket No. 471 at 15-16. I disagree.

The Defendants’ real estate portfolio includes more than 25 properties with the term “Technology Park” or “Tech Park” in their name, many of which have nothing to do with this case. See Tuxbury Decl. at ¶ 3. Therefore, use of the standalone search term “Tech Park” and “Technology Park” returned over 100,000 documents, a significant number of which were irrelevant to this case. Id. at ¶ 4. As such, when utilizing the search term of “Tech Park,” the Defendants employed the qualifiers of “Tech Park X,” “Technology Park X,” “600 Tech Park,” and “600 Technology Park” in conducting their search. Id. They also used the search term “TPX.” Under the circumstances, that search appears entirely appropriate, even if it resulted in the exclusion of the two email chains ultimately produced on June 1, 2020.[4] See, e.g., Enslin v. Coca-Cola Co., No. 2016 WL 7042206, at *3 (E.D. Pa. June 8, 2016) (internal citations and modifications omitted) (“There is no obligation on the part of a responding party to examine every scrap of paper in its potentially voluminous files, and in an era where vast amounts of electronic information is available for review, ... courts cannot and do not expect that any party can meet a standard of perfection.”).

The Plaintiffs also argue that the Defendants’ failure to proactively disclose their search terms and protocols violated “the letter and spirit” of the Federal Rules of Civil Procedure. Docket No. 471 at 14-16. The Plaintiffs, however, have not cited any authority to support this argument. Absent an agreement between the parties or a timely objection, the producing party is in the best position to determine the method by which it will collect responsive documents. See Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009) (citing The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery). There is no evidence that Plaintiffs ever sought to agree on an E-discovery protocol with Defendants or attempted to raise this issue with Defendants prior to the end of fact discovery. There is also no evidence before this Court that Defendants’ search failed to capture other responsive documents. See id. at 428 (“The notion that a document production is insufficient based on a belief that documents must exist simply is not enough to grant a motion to compel ...”). Therefore, Plaintiffs have not made a colorable showing that Defendants are purposefully or even negligently withholding responsive documents so as to warrant the disclosures sought by Plaintiffs by this motion.

C. Whether The Defendants Have Withheld Other Documents Regarding The 2012, 2014, And 2015 Appraisals

*4 Finally, the Plaintiffs argue that the belatedly produced emails reveal that Defendants have not produced other evidence regarding the 2012, 2014, and 2015 appraisals that are relevant to the Plaintiffs’ claims. Docket No. 471 at 16-28. For example, in one of the emails, Kevin Rodenberg, the treasurer of defendants TGC and GCCI, instructs Tobin Dozois to provide five categories of information regarding Tech Park X to the appraiser for the 2014 appraisal. Docket No. 471 at 16. Based on this email, Plaintiffs assume that documents must exist demonstrating communications between Mr. Dozois and the appraiser and/or the submission of the requested information to the appraiser. Id. at 16-17. However, the Defendants have represented that there are no such communications in their eDiscovery database. Tuxbury Decl. at ¶ 9. In addition, Defendants have represented that they went back and searched their entire database for any emails relating to the Marotta appraisals for Tech Park X, employing a variety of standalone search terms, including “Marotta” and have not found any other responsive emails. Id.

Plaintiffs also claim that the second email in Defendants’ June 1 production refers to scheduling a site visit for Mr. Marotta, but “no emails or other documents concerning the 2012 site visit or any other interactions with Mr. Marotta were produced.” Docket No. 471 at 17, n. 12. However, Defendants represent that they have in fact produced several email communications regarding Marotta's 2012 appraisal.[5] Tuxbury Decl. at ¶ 11 and Ex. A. Finally, contrary to Plaintiffs’ allegations, Defendants represent that they have produced the 2015 appraisal[6] as well as Mr. Marotta's email request for information for the 2015 appraisal. Docket No. 534 at 18.

In summary, Plaintiffs have not shown that the Defendants failed to comply with their discovery obligations in this case. Accordingly, I deny the motion.

III. ORDER

For the foregoing reasons, I deny the Plaintiffs’ motion to compel. I decline to award Defendants the attorney's fees and costs incurred in responding to the motion.

Judge Casper referred the motion to the undersigned on June 30, 2020. Docket No. 473.

Citations to “Docket No. ___” are to documents appearing on the Court's electronic docket. They reference the docket number assigned by CM/ECF, and include pincites to the page numbers appearing in the top right corner of each page within the header appended by CM/ECF.

The Traverses are also limited partners in the Technology Park V Limited Partnership (“Tech Park V”). Declaration of Tobin R. Dozois, Controller for TGC (Docket No. 48-2) (“Dozois Aff.”) at ¶ 2.

Those two emails were not captured in the original search because they use the unique qualifier of “600 & 800 Tech Park.” Tuxbury Decl. at ¶ 10. In other words, in those e-mails, “600 Tech Park” was not used but, rather, “600” was separated from “Tech Park” by the term, “& 800.” Id. The Defendants represent that they have now run a search for documents with “600 & 800 Tech Park” and did not receive “any further responsive hits that had not been produced.” Id.

Defendants represent that they do not have a copy of the 2012 appraisal itself in their possession, custody, or control. Tuxbury Decl. at ¶ 27.

At oral argument, Plaintiffs’ counsel acknowledged that Defendants had in fact produced a copy of the 2015 appraisal.