*1 This is a premises liability action arising out of a mass shooting event that took place at a Waffle House restaurant in Antioch, Tennessee on April 22, 2018. Docket No. 1-1, p. 4-5. Plaintiff Sharita Henderson was shot multiple times in the assault and asserts claims against Defendants Waffle House, Inc.; WH Capital, LLC; and Mid South Waffles, Inc. (collectively, “Waffle House”) alleging that Waffle House was negligent in not having adequate security measures in place to protect patrons. Docket No. 1-1, p. 4. Waffle House contends that the shooting was the unforeseeable act of a mentally unstable and violent individual, and that it had neither the duty nor the ability to prevent his acts. Docket No. 1-1, p. 31.

This matter is now before the Court upon a Motion to Compel Discovery filed by Ms. Henderson. Docket No. 77. Ms. Henderson has also filed a Supporting Memorandum and other supporting documents. Docket Nos. 78, 78-1 to 78-5. Waffle House has filed a Response in Opposition and Ms. Henderson has filed a Reply. Docket Nos. 81, 85. At the Court's direction, the Parties filed a Joint Status Report and associated documents. Docket Nos. 99, 99-1, 99-2. For the reasons set forth below, Ms. Henderson's Motion (Docket No. 77) is GRANTED.

A. Discovery Requests and Motions to Compel

Discovery in federal court is governed by the Federal Rules of Civil Procedure, which provide that a party may request production of documents or other tangible items as long as the information sought is within the scope of discovery. Fed. R. Civ. P. 34(a); see also Fed. R. Civ. P. 26(b)(1). Interrogatories are covered by Rule 33, which provides that “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).

In general, the scope of discovery extends to nonprivileged information that is relevant to any party's claim or defense, regardless of whether the information sought is admissible, that is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The Rules were amended, effective December 1, 2015, in part to address the alleged costs and abuses attendant to discovery. Under Rule 26, “[t]here is now a specific duty for the court and the parties to consider discovery in the light of its ‘proportional[ity] to the needs of the case ....’ ” Turner v. Chrysler Grp. LLC, No. 3:14-1747, 2016 U.S. Dist. LEXIS 11133, at *2, (M.D. Tenn. Jan. 27, 2016), quoting Fed. R. Civ. P. 26(b)(1). The following factors are relevant to a consideration of whether the scope of discovery is proportional:

Fed. R. Civ. P. 26(b)(1) (numbering added). “Nevertheless, the scope of discovery is, of course, within the broad discretion of the trial court.” United States v. Carell, No. 3:09-0445, 2011 U.S. Dist. LEXIS 57435 at *5 (M.D. Tenn. May 26, 2011), quoting Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998) (internal quotation marks omitted).

*2 After making a good faith effort to resolve a dispute, a party may move for an order compelling discovery. Fed. R. Civ. P. 37(a)(1). The moving party “must demonstrate that the requests are relevant to the claims or defenses in the pending action.” Carell, 2011 U.S. Dist. LEXIS 57435 at *5, quoting Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008) (internal quotation marks omitted). “Relevance for purposes of discovery is broadly construed and the information sought need not be admissible to be discoverable.” T.C. ex rel S.C. v. Metro Gov't of Nashville & Davidson Cty., No. 3:17-01098, 2018 WL 3348728, 2018 U.S. Dist. LEXIS 113517, at *17 (M.D. Tenn. July 9, 2018). “If relevancy is shown, the party resisting discovery bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable under the Federal Rules.” Carrell, 2011 U.S. Dist. LEXIS 57435, at *5 (internal quotation marks and citation omitted).

B. The Parties' Discovery Dispute

Although Ms. Henderson's Motion identifies several areas of contention between the Parties, the recent Status Report clarifies that only one issue remains to be resolved: the scope of discovery of electronically stored information (“ESI”). See Docket Nos. 77, 99. On that topic, the Parties agree that they have conferred several times and made various modifications to their proposed ESI search parameters with the goal of reducing the overall number of documents that Waffle House must review. Docket No. 99, p. 2. They further agree that some search terms have been removed and others have been modified to exclude documents that are less likely to be relevant. Id. at 3. As it now stands, the disputed ESI dataset was generated by using 13 search terms that have yielded a total of 228, 944 pages of documents to be reviewed for responsiveness. Id. at 4. As further explained below, the Parties disagree as to whether this dataset of ESI is reasonable, not unduly burdensome, and proportional to the needs of the case.

Ms. Henderson argues that she has made considerable concessions, including allowing Waffle House to exclude all email attachments, that have resulted in a reduction of more than 90% in the size of the ESI dataset. Id. at 4-5. She maintains that the current ESI dataset is reasonable under the circumstances of this case and not unduly burdensome, especially if Waffle House employs some common tactics to reduce costs (e.g., using predictive coding and contract document review attorneys).

Waffle House contends that it has already incurred substantial cost in reviewing and producing documents and that the additional ESI dataset will impose an undue burden of time and expense. Id. at 6-8. Waffle House estimates that the document review will take between 1550 and 2300 hours, and cost between $284,000 and $423,000 in legal fees using the blended billing rate of Waffle House's counsel. Id. at 7.

Waffle House appears to argue that Ms. Henderson is not currently entitled to any of the documents in the ESI dataset: “Waffle House takes the position that the documents reviewed and produced to date, along with the complete list of security incidents nationwide, would allow [Ms. Henderson] to finely tune her discovery requests.” Id. at 7-8. Waffle House also objects to the following search terms, arguing either that they are overbroad or that Ms. Henderson has already obtained sufficient discovery related to that term: “shooting,” “assault,” “security,” “back door,” “door AND lock,” “door AND seal.” Id. at 8-9.

As the movant, Ms. Henderson has the burden to establish the relevance of the disputed discovery. Carell, 2011 U.S. Dist. LEXIS 57435 at *5. But here, the Parties have specifically agreed that the fact that a document hits on a search term does not automatically make it relevant. Docket No. 78-3, p. 4. Instead, what is actually in dispute is where to look for potentially relevant documents (which custodians must be searched) and how to look for them (which search terms to use). The Court is not inclined to second-guess the Parties' selection of search terms. Among other things, the terms that yield the greatest number of hits in this dataset, and thus create the greatest review burden (“shooting,” “safety,” “security,” “assault,” and “gun”) are among those that seem particularly likely to capture documents relevant to the claims and defenses in this case.

*3 Waffle House contends that only documents related to the particular Waffle House location where the shooting took place can be relevant to this action. Docket No. 81, p. 13, citing McClung v. Delta Square Ltd. Partnership, 937 S.W. 2d 891, 901-02 (Tenn. 1996). Waffle House correctly states part of the holding of McClung, which is that “[a]s a practical matter, the requisite degree of foreseeability essential to establish a duty to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of defendant's premises.” McClung, 937 S.W. 2d at 902 (emphasis added). But in this instance, the Court does not find that McClung forecloses the possibility of seeking discovery in documents that do not reference the Antioch location.

First, as this Court has previously stated, the purpose of allowing discovery into documents beyond those restricted to the Antioch Waffle House is to permit Ms. Henderson to investigate “the methodology behind how safety and security decisions are made at Waffle House generally.” Docket No. 74, p. 7. Waffle House has not indicated that these security and safety decisions are made by the staff of individual Waffle House locations independent from Waffle House corporate. Instead, the Declaration of John Fervier, Waffle House's Vice President of Risk Management and Security, suggests that such matters are handled in a centralized manner. Docket No. 51-1. For example, Mr. Fervier states that “[c]urrently, I oversee the security apparatus and efforts at over 1600 Waffle House, Inc. company-run and subsidiary-run restaurants nationwide.” Id. at 3. Therefore, Ms. Henderson might reasonably seek for evidence that will reveal how safety and security decisions are made beyond the universe of documents that mention by name or number the Antioch location. Additionally, McClung states that in establishing liability, previous criminal acts that bear on foreseeability will have taken place on or near the subject premises in almost all cases, allowing for the possibility that there may be circumstances where that does not apply. The Federal Rules also allow a party to raise a nonfrivolous argument for an extension or modification of a law (see Fed. R. Civ. P. 11(b)(2)); Ms. Henderson may be planning to seek a reinterpretation of the principles behind the rule stated in McClung.

Second, McClung dealt with the question of whether particular evidence could be used to sustain a motion for summary judgment. Here, the Parties are at the very early stage of discovery; the specific facts of the case are still being established. A broader definition of relevance is necessarily employed and expected under the Federal Rules when dealing with discovery considerations than when deciding whether evidence is admissible. See T.C. ex rel S.C., 2018 U.S. Dist. LEXIS 113517, at *17.

Turning to Waffle House's assertion of undue burden, the Court has considered the amount of time and money necessary to review the ESI dataset in light of the proportionality factors set forth in Rule 26. Given the gravity of the harm done in this shooting and the severity of the injuries Ms. Henderson is alleged to have sustained, the fact that Waffle House has not asserted that decisions about security are made locally and individually rather than corporately, and that Waffle House has complete access to this information while Ms. Henderson has none, the Court finds that the burden or expense of the proposed discovery does not outweigh its likely benefit.

For the foregoing reasons, Ms. Henderson's Motion (Docket No. 77) is GRANTED. Waffle House must produce relevant and responsive documents from the ESI dataset that has been created by the use of the Parties' agreed-upon search terms. Nothing in this Order precludes the Parties from finding ways to further reduce the burden on Waffle House. The Court suggests that the Parties consider the following possibilities: 1) Waffle House may wish to use a combination of predictive coding and contract document review attorneys to decrease the time and expense of the document review process (an ESI vendor should be able to arrange for both of these services – the Court notes that it would be unusual for counsel of record to personally undertake a document review of this size); 2) the Parties may decide to agree that Waffle House will run the ESI dataset for privilege terms and then produce all remaining documents (those that do not hit on privilege terms) to Ms. Henderson, allowing Ms. Henderson to review the documents for relevance; 3) the Parties may, of course, continue to negotiate search terms and attempt to further reduce the dataset.

*4 IT IS SO ORDERED.