Re: Dkt. No. 238

*1 Plaintiff Radio City, Inc. on behalf of Direct Purchaser Plaintiffs (“DPPs”) moves to enforce the Court's order setting deadlines for Defendants' substantial completion of document production (Dkt. No. 212),[1] and for an order requiring Defendants to show cause why they should not be sanctioned for violating that order. Dkt. No. 238 (redacted); Dkt. No. 239-29 (unredacted). The Court held a hearing on the motion on August 16, 2022. Dkt. No. 252.

The Court denies DPPs' request for relief and for an order to show cause, and orders further proceedings, as set forth below.

I. BACKGROUND

After resolving several discovery disputes, including a dispute concerning Defendants' proposed use of technology assisted review (“TAR”) in the production of electronically stored information (“ESI”) (Dkt. No. 201), on October 27, 2021, the Court entered an order setting several deadlines, including the following:

Dkt. No. 212 at 2.

In early March 2022,[2] Defendants produced 51,500 documents to DPPs and the Indirect Purchaser Plaintiffs (“IPPs”) (collectively, “Plaintiffs”). Dkt. No. 238 at 5, 7. On March 15, 2022, IPPs filed a motion seeking leave to file an amended complaint, relying in part on several of the documents included in Defendants' recent production. Id. The next day, on March 16, 2022, Defendants emailed Plaintiffs explaining that the 51,500 documents had been produced in error:

Dkt. No. 238-4. The spreadsheet attached to the email listed, among other things, documents IPPs had cited and relied upon in support of the motion for leave to file an amended complaint. Dkt. No. 238 at 7. After IPPs objected to Defendants' demand that they destroy obviously responsive documents on which IPPs had already relied, Defendants agreed that Plaintiffs need not destroy those documents, but asked that the remaining documents be segregated until Defendants could complete their review of those documents. Dkt. Nos. 238-8, 238-10. IPPs agreed to this request. See Dkt. No. 238 at 15-16; Dkt. No. 245 at 11.

Meanwhile, DPPs pointed out to Defendants that the 51,500 documents included many additional documents that were obviously not privileged and that no rule or order permitted Defendants to clawback non-privileged materials from production. Dkt. No. 238-7. DPPs advised that they would “quarantine” the 51,500 documents but asked Defendants to substantiate any claim of privilege as to any document by March 30, 2022. See id. When Defendants did not comply with this request, DPPs advised that they would ask their own discovery vendor to screen the 51,500 documents for privilege using the names of Defendants' attorneys then known to DPPs, after which DPPs would resume review of the remaining documents. Dkt. No. 238-12. Defendants objected to DPPs using “self-help” and demanded that DPPs “immediately stop reviewing those documents pending our further review.” Dkt. No. 238-13.

The parties conferred regarding the 51,500 documents during the month of April 2022. Dkt. No. 238 at 11; Dkt. No. 247 at 4. On April 26, 2022, Defendants provided a spreadsheet identifying some documents as privileged and 4,270 as non-responsive. Id. On May 2, 2022, Defendants re-produced all of the 51,500 documents to Plaintiffs except for 4,270 documents withheld as “non-responsive” and 65 withheld as “potentially privileged.” Id.

The parties conferred again on July 5, 2022. Dkt. No. 245-1 ¶ 12. Defendants offered to produce a final log of the documents being withheld and invited Plaintiffs' counsel to identify any documents about which they had questions so that the documents could be shared and discussed in an effort to “resolve any doubts on the issue of relevance, privilege and privacy.” Id. DPPs filed the present motion later that same day.

On July 19, 2022, shortly before filing their opposition to DPPs' motion, Defendants made an additional production of documents. Dkt. No. 245 at 3; Dkt. No. 247 at 3. Defendants represent that they have now re-produced 49,000 of the 51,500 documents and are presently withholding approximately 1800 as non-responsive and as containing personal or sensitive information, and 190 as privileged. Dkt. No. 247 at 3.

*3 DPPs ask the Court to order Defendants to (1) certify that they have now substantially completed their document production and are not withholding any other potentially responsive documents pending further review for undisclosed purposes; (2) disclose to DPPs the criteria Defendants used to identify the collection of 51,500 documents as sensitive or potentially privileged and how they made their determinations that some of these documents are non-responsive; and (3) show cause why they should not be sanctioned for violating the Court's scheduling order setting deadlines for the substantial completion of document production and the production of privilege logs. See Dkt. No. 238 at 2; Dkt. No. 247 at 9. Defendants ask the Court to deny DPPs' motion, and to order DPPs' counsel to return or destroy all non-responsive and privileged documents that were inadvertently produced. Dkt. No. 247 at 18.

II. DISCUSSION

DPPs argue that Defendants violated the Court's scheduling order by failing to produce 51,500 documents that should have been produced by January 3, 2022, or at the latest by February 15, 2022, and that they compounded this violation by subsequently demanding the destruction or sequestration of highly relevant documents within that production. Dkt. No. 238 at 15. They also argue that it is inappropriate for Defendants to engage in a secondary review of documents that hit on a court-ordered search term. Id. at 15-16. DPPs seek relief pursuant to Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure, which provides that “[i]f a party ... fails to obey an order to provide ... discovery ... the court ... may issue further just orders,” including several listed sanctions. See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).[3]

Defendants do not dispute that they did not produce the 51,500 documents until March 2022, after the January 3 and February 15 deadlines. They also do not dispute that this set of documents contained many highly relevant documents. Defendants argue that the 51,500 documents represent a small fraction of the more than 3.8 million documents they have already produced in this case. They do not explain why the 51,500 documents were produced initially after the deadline set for compliance, but they appear to argue that DPPs have suffered no prejudice, given the steps Defendants have taken to review and re-produce all non-privileged responsive documents as of July 19, 2022. See Dkt. No. 245 at 3, 11. At the hearing, Defendants' counsel confirmed that Defendants are not withholding any other collection of potentially responsive documents pending further review for undisclosed purposes. Dkt. No. 252.

DPPs principal concern is not so much that Defendants failed to produce many highly relevant documents until after the substantial completion deadline, but that Defendants intended to delay that late production even further so that they could conduct a supplementary review of these documents, without informing Plaintiffs of what they were doing and how they were doing it, and then tried to prevent Plaintiffs from reviewing the documents that were inadvertently produced. Defendants' inadvertent production of these documents and subsequent efforts to get them back has now given rise to suspicion about the Defendants' compliance with their discovery obligations.

While the Court does not condone Defendants' late production of documents, Defendants have already taken steps to remedy their non-compliance. As the Court understands, Defendants have now produced all the documents DPPs identified as highly relevant in their motion papers. In addition, Defendants have provided a log of all documents withheld as privileged or non-responsive and have offered to provide Plaintiffs more information about any non-responsive document upon request. At the hearing, the Court asked DPPs' counsel whether DPPs had identified from among the 51,500 documents any non-privileged responsive documents that Defendants had not yet re-produced. DPPs indicated they did not know of any, although they had not completed their review of Defendants' current log. Dkt. No. 252. In these circumstances, DPPs have not shown prejudice from Defendants' delayed production that might be remedied by measures other than or different from those Defendants have already undertaken.

*4 DPPs additionally demand that Defendants disclose the criteria they used to identify the 51,500 documents for supplementary review. DPPs suggest in their briefing that a Court order requires Defendants to produce all documents that hit on a court-ordered search term and prohibits Defendants from using any criteria or methods to cull documents from review without first disclosing those criteria or methods to Plaintiffs in advance. See Dkt. No. 238 at 1; Dkt. No. 247 at 3; see also Dkt. No. 122 (ESI Order, Secs. IV.A.i and IV.B). DPPs are mistaken. The Court has never ordered that a party must not review ESI for responsiveness after applying search terms; rather, the Court has suggested that a party may choose to expedite its production by relying only on search terms and a privilege screen. See Dkt. No. 201; Dkt. No. 213 at 24-25. Moreover, Defendants explained at the hearing that they applied additional search terms, not to cull documents from production, but to identify within their collection of potentially responsive documents those that required a manual review, so as to avoid inadvertently producing non-responsive documents that included privileged material or private and sensitive information that was not responsive to any of Plaintiffs' document requests. See Dkt. No. 252; see also Dkt. No. 245-1 ¶¶ 4-5. No order prohibits such review.

Accordingly, the Court concludes that DPPs have already obtained substantially all the relief they sought by motion and that sanctions are not warranted. However, in order to ensure complete resolution of this dispute, the Court orders as follows with respect to the 51,500 documents at issue:

IT IS SO ORDERED.