I. BACKGROUND

A. Plaintiff's Allegations and Defendants' Defenses

Plaintiff Gopher Media, LLC (“plaintiff” or “Gopher Media”) is a digital marketing and social media services company. Doc. No. 1 (“Complaint”) at 4. Defendants Phillip Spain (“Spain”) and Steven Marinkovich (“Marinkovich,” and, with Spain, “defendants”) are former employees of Gopher Media. Id. at 5, 8. Spain and Marinkovich were terminated on June 20, 2019 and June 21, 2019, respectively, allegedly for their poor work performance, including that they frequently missed work and work-related events. Id. at 5-9. Thereafter, defendants went to work for Gopher Media's competitor, Adit. Id. at 12. Plaintiff alleges that both Spain and Marinkovich misappropriated Gopher Media's trade secrets, including client lists, event lists, sales strategies, and sales scripts, which they then used to their new employer's benefit. Id. at 6, 8, 11-12. Plaintiff also alleges that defendants solicited Gopher Media's customers and persuaded some of Gopher Media's key employees to join Adit. Id. at 11-12.

Defendants have denied the allegations and asserted that all or some of plaintiff's claims are barred by the defenses of unclean hands, equitable estoppel, plaintiff's own acts, omissions, or misconduct, comparative fault and failure to mitigate (among others). See Doc. 7 at 21-23 (Second, Fifth, Seventh, Eighth, Eleventh, Twelfth, Sixteenth, and Seventeenth Defenses).

B Forensic Examination of Defendants' Electronic Devices

On February 4, 2020, the parties moved the Court to enter an order for the forensic examination of Spain's and Marinkovich's cell phones, laptops, tablets, and memory storage devices in use between January 1, 2018 and the present. Doc. No. 14 at 2. The parties' proposed “Forensic Exam Order” was silent as to the use of search terms to conduct the examination. Doc. No. 14-3. The Court entered the order for the forensic examination as requested by the parties on February 5, 2020. Doc. No. 16.

Over the ensuing months, the parties negotiated a “Joint Examination Protocol for the Preservation and Forensic Examination of Certain Media and Data Repositories” to govern the agreed-upon forensic examination (the “Forensic Examination Protocol”). See Doc. No. 31-2; see also Jt. Mot. at 3. By its terms, the Forensic Examination Protocol “applies to Plaintiff's request for examination of Defendants' media,” but defendants expressly reserved the right to request a forensic examination of Gopher Media's CEO's devices pursuant to an identical protocol. Id. at 2.

*2 The parties executed the Forensic Examination Protocol on May 11, 2020, but they had apparently not agreed on the search terms to be used during the forensic examination by that time. See Doc. No. 31-2 at 10-11. Defendants delivered the devices for inspection and the parties continued to negotiate regarding search terms. Jt. Mot. at 3-4. Although the parties were able to reach agreement as to most of the proposed search terms, as described below, they were unable to reach agreement on three categories of terms and brought the Joint Motion to resolve their dispute. Id. at 4; see also Doc. No. 31-3 (list of search terms).

II. LEGAL STANDARDS

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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.” Fed. R. Civ. P. 26(b)(1). “Relevance for the purposes of discovery is defined broadly.” V5 Techs. v. Switch, Ltd., 334 F.R.D. 297, 301 (D. Nev. 2019).

Nevertheless, the “scope of discovery,” while broad, “is not unlimited.” Cabell v. Zorro Prods., 294 F.R.D. 604, 607 (W.D. Wash. 2013). In addition to the requirement that discovery be proportional to the needs of the case, Rule 26 also empowers the Court to “issue an order to protect a party or person from ...undue burden or expense” on a showing of good cause. Fed. R. Civ. P. 26(b)(1) and (c)(1). District courts have “ ‘broad discretion’ ” to “ ‘permit or deny discovery.’ ” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citation omitted).

III. DISCUSSION

A. Search Terms Related to Defendants' New Employer

Plaintiff requests inclusion of the terms “Adit,” “Ali Jhaver,” “Ali,” and “Jhaver” in the Forensic Examination Protocol.[1] Jt. Mot. at 4. Defendants assert these terms are overbroad and burdensome because they will capture every email from defendants' work accounts for a period of one year. Id. at 5. Defendants also express concern that due to their overbreadth, these terms would potentially capture defendants' employer's confidential trade secrets. Id. Defendants requested that plaintiff propose limiting terms, and specifically suggested that the parties use plaintiff's customer names as modifiers, but plaintiff has refused. Id.

Plaintiff argues that the employer-related terms are necessary to uncover evidence that defendants were in communication with Adit before they defendants left Gopher Media's employ, and that after leaving the company defendants improperly contacted or solicited plaintiff's customers. Id. at 5. Plaintiff also states that it has already limited the search using these terms to the period January 1, 2019 – November 30, 2019, and that further limitation is unnecessary.[2] Id. Plaintiff is unwilling to propose limiting terms, including client names, because it believes that doing so may reveal its counsel's work product. Id. at 6. Plaintiff also disputes that the use of these terms creates a burden to defendants, because the results of any search can be reviewed easily and quickly using a review platform such as Relativity. Id. at 6.

*3 The Court finds these terms to be impermissibly overbroad. The use of “Adit” and its CEO's name for a several-month period is likely to capture a large volume of email and other ESI, much of it wholly irrelevant to the claims at issue. Indeed, in the parties' stipulated ESI agreement (which the Court understands governs the collection of ESI from sources other than the devices subject to forensic examination), the parties agreed that “[i]ndiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction.” Doc. No. 15 at 4. The same is true for these employer-related terms. Thus, the Court will not permit the inclusion of “Adit,” “Ali Jhaver,” “Ali,” and “Jhaver” without the addition of limiting terms.

During the August 17, 2020 conference, defendants raised the possibility of adding plaintiff's clients' names as limiters. Given that plaintiff is seeking evidence of defendants' alleged improper contact with its clients, defendants' proposal seemed reasonable to the Court. However, plaintiff raised two objections. One, plaintiff stated that defendants are accused of stealing not just clients but employees and other confidential information, such that simply adding client names would not be sufficient. Plaintiff's second and larger concern was that sharing its list of limiting terms with defendants could reveal its work product. To address this concern, the Court ordered that any limiting terms were to be shared exclusively with the forensic examiner, and not with defendants or their counsel. See Doc. No. 32. The parties were ordered to submit a proposal for modifying the Forensic Examination Protocol by August 20, 2020; no submission was made. Id. At the August 24, 2020, conference, the parties reported they had not been able to reach agreement on an amendment, and the Court ordered the parties to submit their competing proposals for review. Plaintiff lodged a letter with this Court's chambers on August 24, 2020, describing each side's position.

Plaintiff's proposal is as follows:

(Emphasis added.) Defendants did not submit a counterproposal, but generally objected that plaintiff's proposal was too vague. Specifically, defendants objected to the phrase “at a minimum,” and stated they could not agree to unidentified modifiers which could capture thousands of documents. Defendants requested that the categories of modifying terms be described with more particularity.

Defendants' objections are well taken. The Court has reviewed the Complaint to determine the categories of proprietary information defendants are alleged to have misappropriated. Furthermore, plaintiff has identified the clients and customers that defendants allegedly misappropriated in a 20-page list, attached as Exhibit A to plaintiff's amended interrogatory responses. See Doc. No. 34 at 9-10. Accordingly, the Court finds the Forensic Examination Protocol should be amended to add:

*4 In sum, the Court finds that the employer-related terms are relevant but overbroad, and that the use of limiting terms will ameliorate the defendants' burden. Accordingly, Plaintiff's request to include the terms “Adit,” “Ali Jhaver,” “Ali” and “Jhaver” in the Forensic Examination Protocol is GRANTED in part and DENIED in part.

B. Search Terms Related to Alleged Drug Use

Plaintiff requests that the search terms “cocaine,” “steroids,” and “roids” be included in the Forensic Examination Protocol. Jt. Mot. at 6. Defendant objects that these terms are irrelevant to plaintiff's allegation that defendants stole Gopher Media's trade secrets. Id. Defendants also argue that use of these terms is an attempt to generate improper character evidence. Id. Plaintiff responds that these terms are relevant to defendants' credibility, and to plaintiff's allegations that defendants' drug use contributed to their termination. Id. at 7. Plaintiff argues that since defendants denied those allegations, they have put their drug use “at issue.” Id.

As noted, the scope of relevance under the Federal Rules “is commonly recognized as one that is necessarily broad ... in order ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Cancino Castellar v. McAleenan, No. 3:17-CV-491-BAS-AHG, 2020 WL 1332485, at *5 (S.D. Cal. Mar. 23, 2020) (citation omitted). Here, plaintiff has alleged that both Marinovich's and Spain's alleged abuse of illegal drugs contributed to their poor performance at work and their ultimate termination from Gopher Media. See Complaint at 6-9. In their Answer, defendants state that they were “at some point under the influence after using substances including those provided by his employer and those used with his employer, Ajay Thakore....”[3] Doc. No. 7 at 6-7. Defendants also assert that plaintiff's damages were the result of its own actions or misconduct, and that plaintiff has unclean hands. Id. at 21-22. Considering the parties' claims and defenses, the Court finds that evidence regarding illegal drug use is well within Rule 26's broad scope. Accordingly, plaintiff's request to include the terms “cocaine,” “steroids,” and “roids” in the Forensic Examination Protocol is GRANTED. However, whether documents including such terms exist following the respective terminations of Spain and Marinkovich is irrelevant, so documents related to these terms are to be produced only for the time period from January 1, 2019 to June 20, 2019 for Spain and January 1, 2019 to June 21, 2019 for Marinkovich.

Furthermore, again considering not only plaintiff's claims but defendants' defenses, the Court finds that fairness requires that plaintiff's CEO's devices be searched using the same terms. Plaintiff is ordered to produce any cell phones, laptops, tablets, and memory storage devices in use by Mr. Thakore for the period January 1, 2018 to the present for forensic examination in accordance with the parties' Forensic Examination Protocol.

C. Search Terms Related to Document Types

Finally, plaintiff requests that the search terms “Google sheets” and “Google docs” be included in the Forensic Examination Protocol. Jt. Mot. at 7. Defendants object to these terms as overbroad because they will capture “virtually every Adit document” including many that are irrelevant to the case. Id. Defendant also objects that the terms may capture sensitive or confidential information. Id. Plaintiff states defendants' privacy concerns are ameliorated by the protective order. Id. Plaintiff also states that defendants will have a chance to review all the documents before they are provided to plaintiff and may assert privileges or designate them confidential as necessary. Id. at 8. Plaintiff does not address defendants' primary concern that these terms are overbroad and impose an undue burden on them.

*5 During the parties' August 17, 2020 conference with the Court, plaintiff's counsel stated he believed these terms were necessary because it was not clear whether the parties' search terms would capture any document in a document family containing the search term, or only the parent document. At the Court's request, defendants' counsel relayed this concern to defendants' forensic consultant, who responded that all documents that contained a search term would be captured, whether contained in emails, attachments to emails, or some other type of document. Given this information, the Court finds that the use of the terms “Google docs” and “Google sheets” is unnecessary and unreasonably cumulative. See Fed. R. Civ. P. (b)(2)(C). Plaintiff's request to include these terms in the Forensic Examination Protocol is DENIED.

ORDER

For the reasons set forth above, the Court hereby ORDERS as follows:

IT IS SO ORDERED.

The Court is informed that Ali Jhaver is Adit's CEO.

As Spain and Marinkovich were terminated on June 20, 2019 and June 21, 2019, respectively, this proposed time period includes an extensive period of time during which they were employed not by plaintiff, but by Adit.

Mr. Thakore is Gopher Media's CEO.