*1 Before the court is Plaintiffs'[1] Motion for Order Compelling Non-Party Agri Stats, Inc.'s (Argi Stats) Compliance with Subpoena (Motion) (ECF 233). In issuing this determination the court considered third-party Agri Stats, Inc.'s (Agri Stats) Opposition to Plaintiffs' Motion for an Order to Compel Compliance with Subpoena (Opposition) (ECF 255) and Plaintiffs' Reply in Support of Plaintiffs' Motion for an Order Compelling Non-Party Agri Stats, Inc.'s Compliance with Subpoena (Reply) (ECF 268). Defendants have not submitted a position on the matter and the time to do so has expired. For the reasons discussed below, the court GRANTS the Motion in part and ORDERS the parties to meet and confer.

A. This court has the authority to adjudicate the Motion.

Plaintiffs have moved under Rule 37 and 45 for an order compelling Agri Stats to produce all non-privileged documents and electronically stored information that hit on the parties' agreed upon search terms (ECF 233). Agri Stats contends Plaintiffs have filed this Motion in the wrong court and any decision regarding Plaintiffs' substantive arguments should be decided by the Northern District of Indiana (ECF 255). Plaintiffs argue that this court, as the court presiding over the MDL has the authority under 28 U.S.C. § 1407(b) to determine the Motion (ECF 268). The court agrees.

Pursuant to Federal Rule of Civil Procedure 45, when the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Fed. R. Civ. P. 45(f). Pursuant to Rule 37, a motion directed at a nonparty must be made in the court where the discovery is or will be taken. Fed. R. Civ. P. 37(a)(2). Here, the issuing court for the subpoena is the Eastern District of Oklahoma and the place of compliance is Fort Wayne, Indiana (ECF 233, Ex. A).

In their initial Motion, Plaintiffs briefly argue this court has jurisdiction to decide Rule 45 disputes irrespective of the place for compliance (ECF 233 at 8 n.13). Plaintiffs cite to a Tenth Circuit case as support for this contention, In Re EpiPen (Epinephrine Injection, USP) Marketing, Sales practices and Antitrust Litigation, MDL No: 2785, 2018 WL 4854027 (D. Kan. Oct. 5, 2018), but that particular order does not include the language quoted by Plaintiff nor does it stand for the notion that the transfer court in multidistrict litigation has jurisdiction to decide Rule 45 motions irrespective of place for compliance. In their Reply, Plaintiffs include a different cite to In re EpiPen, 2018 WL 2980879, at *3, to support their position. In that order, looking to the authority in 28 U.S.C. § 1407(b), which deals with multidistrict litigation and provides the “judge ... to whom such [MDL] action are assigned ... may exercise the power of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings,” the court found it was necessary to assume enforcement powers in relation to third-party subpoenas and have the court presiding over the MDL decide the motion to compel to avoid duplicative discovery and inconsistent rulings. Id. Plaintiffs also cite to a Fifth Circuit case as additional support, In re Clients & Former Clients of Baron & Budd, P.C., 478 F. 3d 670, 671 (5thCir. 2007). In this case, the Fifth Circuit also looked to 28 U.S.C. § 1407(b) and interpreted the MDL court's authority to address “pretrial depositions” to include subpoenas. Id. at 672. In their Reply, Plaintiffs also cite to many cases where MDL judges handle subpoena disputes under factually similar circumstances (ECF 268).

*2 While the court recognizes that Agri Stats is headquartered in Indiana, is not a party to this multi-district litigation, and that the discovery is located in Indiana and was to be produced in Indiana, in an effort to continue to streamline the litigation and avoid undue delay or inconsistent results, the court will embrace the Motion under its authority to conduct pretrial matters pursuant to authority under 28 U.S.C. § 1407(b).

B. Agri Stats must meet and confer with Plaintiffs to explain why all non-privileged documents that hit on the agreed upon search terms were not produced.

“A subpoena served on a third party pursuant to Rule 45 is subject to the same standards that govern discovery between the parties and, therefore, must seek information that is relevant and proportional to the needs of the case.” Compania de Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua, S.A.B. de C.V., No. 1:15-cv-02120-JLK, 2019 WL 8223561, at *2 (D. Colo. Dec. 31, 2019). Rule 26(b)(1) permits parties to seek discovery regarding any “nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering” the issues at stake, the amount in controversy, access relevant information, the parties' resources, the importance of the discovery, and the burden or expense of the proposed discovery weighed against the likely benefit. Fed. R. Civ. P. 26(b)(1). However, broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of the parties. Gomez v. Martin Marrietta Corp., 50 F.3d 1511, 1520 (10th Cir.1995)

Here, Plaintiffs' and Agri Stats's dispute centers around Agri Stats's use of Technology Assisted Review (TAR) in responding to Plaintiffs' subpoena. Plaintiffs argue Agri Stats's use of TAR was not initially known as they understood, after much negotiation that Agri Stats agreed to search terms (with some caveats) as set out in the May 12 Proposal (May 12 Proposal, ECF 255 Ex. 6, ECF 233 Ex 1). Plaintiffs argue Argi Stats's conduct violates the Federal Rules, this court's Stipulated Order Regarding the Production of Documents and Electronically Stored Information[2] (ESI Order) and Agri Stats's production was deficient since it further culled the documents in ways unknown to Plaintiffs. Agri Stats asserts its use of TAR does not violate the rules, that Plaintiffs did not clarify or ask if Agri Stats was using TAR, that Agri Stats always reserved the right to review the documents for relevance, and that Agri Stats has already produced all relevant documents responsive to the subpoena.

In their Reply, Plaintiffs assert that if Agri Stats wanted to use TAR, it was incumbent upon Agri Stats to meet and confer with Plaintiffs so that Plaintiffs could obtain information concerning the methodology, and the parties could negotiate an appropriate validation protocol but that because Agri Stats “concealed its use of TAR from Plaintiffs” no such information was exchanged, and no such validation protocol was negotiated (ECF 268).

Courts in this district have found that when there has not been an agreement to the contrary, a party is not required to seek approval to use TAR. See Entrata, Inc. v. Yardi Sys., Inc., No. 2:15-cv-00102, 2018 WL 5470454, at *7 (D. Utah Oct. 29, 2018) (district court finding defendant was not required to seek approval from the court to use TAR where there was never an agreement to utilize a different search methodology). Plaintiffs themselves concede the parties did not have a validation protocol and concede they had been negotiating with Agri Stats for over a year. Neither party has persuasively alleged there was a final agreement to use a different search methodology and Plaintiffs have not cited to any authority for their position that a third-party's use of TAR violates the Federal Rules. The court is unable to find that Argi Stats intentionally hid its use of TAR. The court is also not persuaded that Agri Stats is bound to the parties' ESI Order. Agri Stats is not a party to this case and did not initially know of, negotiate, or stipulate to the ESI Order.

*3 However, this does not resolve what Plaintiffs recognize is an impasse on outstanding documents. With regard to Agri Stats's contention that it has already produced all relevant documents in response to the subpoena, the court is not persuaded by the briefs that the parties have adequately met and conferred regarding what was done after the parties reached agreement on search terms as set out in the May 12 Proposal. Plaintiffs contend the search terms yield 43,000 documents of which 25,000 were not produced. While Agri Stats reserved the right to review the documents, Plaintiffs were not aware of the culling methodologies and has questions on what it argues are gaps in the production and legitimate questions about what was and was not produced. For example, Plaintiffs explain that only 375 of the produced documents are emails and question why this amount is so low given some defendants have produced many more emails involving Argi Stats. Agri Stats is therefore ordered to explain why it withheld the 25,000 additional documents. While the court declines to order the precise relief requested —to produce all the documents that “hit on the narrow, negotiated and agreed search terms”—the court orders Argi Stats to explain its culling method and to justify why documents were not produced based on those agreed upon search terms.

For the reasons discussed above, the court GRANTS the Motion in part and ORDERS Agri Stats and Plaintiffs to meet and confer in person or via Zoom within seven days from the date of this Order regarding any additional documents that may exist and the appropriate culling method and validation protocol that were used so that is it clear why the 25,000 documents were not produced. If the parties are unable to reach a consensus, they can contact chambers to set this matter for a hearing to further address the matter.