*1 Defendants served the 10 named class-action plaintiffs (“the Class Plaintiffs”) with Requests for Production and Interrogatories related to the Second Amended Consolidated Economic Loss Class Action Complaint (“ELC Complaint”) and the Amended Consolidated Medical Monitoring Class Action Complaint (“MM Complaint”). The Class Plaintiffs have agreed to collect and produce evidence from some electronic sources, including social media accounts, but not from all the sources identified by Defendants. Defendants move to compel more rigorous searches. That motion is DENIED.

I have reviewed Defendants' Motion to Compel and all of its exhibits. ECF No. 4600. I have also reviewed the Class Plaintiffs' Response and all of its exhibits. ECF No. 4633. I held oral argument on November 10, 2021. I am fully advised and this matter is ripe for decision.

Defendants' Requests for Production (RFP) 41-52, 56-59, and 70 and Interrogatories 13 and 21 (collectively “the Discovery Requests”) seek evidence of:

The Discovery Requests seek evidence from “emails, social media posts, blog posts or other written communications.”

The Class Plaintiffs responded in writing to the Discovery Requests. They lodged objections based on relevance, proportionality, and privilege. The parties have conferred and have narrowed the issues in dispute. The remaining disputes for me to resolve now are:[1]

A. Relevance of Risky Behaviors

For the reasons argued by Defendant's Counsel at the oral argument, I find that evidence of risky behavior is relevant to the claims and defenses in this MDL, including whether the Class Plaintiff meet the typicality and adequacy requirements to be class representatives. See Hrg. Tr. at 12-19. At a minimum, for the ELC Complaint, this evidence is relevant to detrimental reliance and materiality; for the MM Complaint, it is relevant (at least) to establishing a baseline cancer risk that was (allegedly) significantly increased by the use of ranitidine products.

B. Discovery Scope

The substantive scope of discovery is limited to evidence relevant to the claims and defenses asserted by the parties and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In evaluating proportionality, the Court looks to (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to the relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs the likely benefit. Fed. R. Civ. P. 26(b)(1).

Class Plaintiffs do not object to searching email accounts, text messages, document repositories (e.g., computers, tablets, external storage media, cloud-based storage), Facebook profiles, Twitter profiles, and WhatsApp communications.[2] They object, on proportionality grounds, to searching Instagram, Snapchat, TikTok, Facebook Messenger, Twitter Direct Messages, and Facebook Activity. With regard to Facebook Messenger and Twitter Direct Messages, counsel for the Class Plaintiffs represent that they queried their clients, individually, and have learned that these platforms were not used for communications that would be relevant. Tr. at 34. They therefore argue that the burden of searching these additional platforms outweighs the likely benefit. Id. at 34-35, 39-41. Defendants respond that these sources can be readily searched and that Defendants should not be limited to relying on deposition testimony or other after-the-fact evidence.

*3 I now turn to the proportionality factors. The amount in controversy in this MDL is substantial, which militates in favor of more expansive discovery. The Plaintiffs have more access to information about their own backgrounds and behaviors, which cuts in favor of more expansive discovery. Both sides have ample resources, so this factor is neutral. That being said, I give these factors collectively much less weight than the remaining factors.

The requested discovery goes primarily to the issue of class certification, and more specifically whether the currently-named Class Plaintiffs satisfy the typicality and adequacy requirements of Federal Rule of Civil Procedure 23(a)(3) and (a)(4). These issues, while important to the litigation, are not significant hurdles that warrant exhaustive discovery. As Judge Rosenberg has explained elsewhere:

Alderman v. GC Services Ltd. P'ship, 2:16-CV-14508, 2018 WL 542455, at *5 (S.D. Fla. Jan. 19, 2018). Likewise, adequacy “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) cited in Alderman, 2018 WL 542455, at *6. Given these relatively permissive legal standards and the large number of available class members, it appears likely that even if the current Class Representatives fail to satisfy Rule 23(a), an adequate substitute could be found. Additionally, the Class Plaintiffs have agreed to conduct searches of sources that are likely to produce evidence probative of these issues. For these reasons, I find that this proportionality factor does not weigh in favor of the broader discovery advocated by Defendants.

Similarly, I do not give great weight to the importance of the requested discovery in resolving the issues of typicality and adequacy. Defendants seek text messages and digital evidence of risky behaviors, cancer risk factors, economic loss, other cancer-related lawsuits, and knowledge of facts that might trigger the statute of limitations. It is certainly more probative of these issues if a Class Plaintiff has engaged in systematic risky behaviors or has an extended history of cancer risk factors. It is less probative if there are merely isolated incidents. As Defendants note, there are numerous alternative sources of equally or more probative evidence (such as the sources they have agreed to search, medical records, court filings, and financial records) that do not require granular ESI searching of these additional platforms. Put simply, it is not worth the candle to search these additional social media platforms for pictures or posts of individualized incidents of someone smoking or eating bacon or drinking to excess. If that person is a long-term smoker, eats badly, or drinks excessively, there are other ways to prove it that are readily available to Defendants.

*4 Finally, because the requested additional evidence is not integral to proving an important issue in the litigation, the burden of searching for it outweighs the likely benefit. Even assuming that Defendants are correct that inexpensive and readily-usable tools exist that would simplify searching for this evidence, Class Plaintiffs have agreed to search other sources and have engaged in a reasonable inquiry that indicates it is unlikely that relevant material will be found in the sources that they are declining to search.

In sum, I find that searching the Class Plaintiffs' accounts on Instagram, Snapchat, TikTok, Facebook Messenger, Twitter Direct Messages, and Facebook Activity is not proportional to the needs of the case.

C. Search Protocol

Once the substantive scope of discovery is defined (i.e., after any objections are resolved) a party is required to conduct a “reasonable inquiry” to identify responsive materials. Fed. R. Civ. P. 26(g)(1)(B). Here, Class Plaintiffs propose to limit their searches as follows:

See generally, DE 4600-4 at 2-3, Tr. at 21-25. I find that the proposed search protocol complies with Rule 26(g)(1)’s requirement that a party conduct a “reasonable inquiry” to locate materials responsive to a discovery request. Rule 26(g) does not require a comprehensive search of all possible locations where responsive evidence may be found. Nor does it require a perfect or even optimal search. It requires a “reasonable” inquiry. Plaintiffs' proposed protocol meets that standard.

WHEREFORE, Defendants' Motion to Compel is DENIED without prejudice to seeking additional discovery for good cause shown. On or before November 19, 2021, at noon EDT, the parties shall agree on search terms or shall submit their individual proposed search terms to the Court. If the parties cannot agree, the Court will select, in full, one proposal or the other. Plaintiffs shall begin a rolling production of materials responsive to the Discovery Requests no later than November 29, 2021.

DONE and ORDERED in Chambers this 15th day of November, 2021, at West Palm Beach in the Southern District of Florida.