*1 Before the Court are two competing motions: (1) Plaintiffs' Motion to Compel Discovery from Defendants; and (2) Defendants' Motion for Protective Order. (ECF Nos. 35, 36). Both motions have been fully briefed and were referred to the undersigned for hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF Nos. 37, 38, 41, 43, 49). Having reviewed the pleadings and other papers on file, the Court finds that the facts and legal issues are adequately presented in the parties' briefs and on the record, and it declines to order a hearing at this time.

Background

In their motion, Plaintiffs ask that Defendants be required to produce “all non-privileged documents from April 1, 2018 to the present that reference Plaintiffs in this case, including all communications (including emails and texts) between [Defendant Township of Canton's (‘Canton’)] staff, agents or employees (including communications with third parties) from April 1, 2018 to the present that reference any Plaintiffs in this case.” (ECF No. 35, PageID.937). Plaintiffs further ask that identification and production of such documents be accomplished by applying the search terms identified in Exhibit 1 to their motion to compel (ECF No. 35-2) to Canton's electronic databases, with the native versions of all non-privileged documents yielded being produced to Plaintiffs. Additionally, Plaintiffs ask that Defendants be required to produce a privilege log identifying all documents withheld on the basis of privilege. (ECF No. 35, PageID.937).

In response, Defendants argue that they should not be required to search for documents responsive to the discovery request at issue using Plaintiffs' preferred search terms, claiming that they have already performed searches of their electronic databases for documents responsive to the discovery request at issue, using their own search criteria, which purportedly overlap significantly with Plaintiffs' terms. (ECF No. 36, PageID.1131-32). Defendants assert that their electronic search turned up more than 3,000 pages of documents, many of which had no or little relevance to the instant matter, and they should not be required to again review such a large number of documents for relevance and privilege. (Id., PageID.1130). In addition to objecting to Plaintiffs' request as unduly burdensome, Defendants claim that “the total cost to the Township of complying with the Plaintiffs' request as the Plaintiff demands would be over 2.4 million dollars[.]” (Id., PageID.1134). For the reasons set forth below, Defendants' arguments lack merit.

Analysis

Rule 26(b)(1) controls the scope of discovery and provides, in relevant part:

*2 Fed. R. Civ. P. 26(b)(1). “Although Rule 26 was amended in 2015 to include a ‘proportionality’ requirement, the basic tenet that Rule 26 is to be liberally construed to permit broad discovery remains unaltered.” United States v. Quicken Loans Inc., No. 16-14050, 2017 WL 2306444, at *1 (E.D. Mich. May 26, 2017) (internal quotations omitted).

Applying these principles, the Court is not persuaded by Defendants' arguments. First, Defendants' claim that it would be too costly to search for and produce the requested documents using Plaintiffs' search terms – some $2.4 million – lacks evidentiary support. Defendants cite no evidence for the estimated cost figure. (ECF No. 36, PageID.1133-34). Moreover, their contention that it would be too costly, burdensome, and time consuming to conduct a search using Plaintiffs' preferred terms is belied by the fact that they have already purportedly conducted a similar search – using 19 search terms that they deemed appropriate, rather than the 22 proposed by Plaintiffs – without any suggestion of having incurred significant expense in doing so.[1] Second, any duplicative work could have been avoided had Defendants performed their search pursuant to an agreed-upon ESI protocol, as Plaintiffs had proposed. (See ECF No. 35, PageID.946-949). Third, Plaintiffs have presented enough evidence to overcome any argument that their discovery requests are an improper “fishing expedition.” They note that “the documents produced to date fail to include documents that one would expect to see from a thorough search. For example, Canton has not produced a single document created prior to the inspections of Plaintiffs' properties showing that any Canton official was ever instructed or scheduled to inspect the properties – a key issue in this case.” (ECF No. 49, PageID.1339). They proffer an e-mail from a Canton Planning Services official stating, “We do have other potential violations if the property owner is not cooperative.” (ECF No. 35-12, PageID.1056). Plaintiffs also proffer another Canton official's testimony denying that he said Canton's enforcement efforts against Plaintiffs was a “byproduct” of the underlying dispute (“No, I would never say that”), when they apparently have audio tape of him making such a statement. (ECF No. 35-13, PageID.1061). And, whereas Defendants contend that Plaintiffs lack certificates of occupancy as to certain properties, Plaintiffs proffer the affidavit of John Weyer, a Canton Building Official from 1986-2014, who avers that he is “aware of the issuance of certificates of occupancy” for at least some of the disputed properties. (ECF No. 35-16, PageID.1067-68). While the Court makes no findings whatsoever about any of these issues, they at least underscore the importance of a thorough search for documents responsive to Plaintiffs' discovery requests.

*3 Further weighing in favor of compelling Defendants to produce the requested discovery is that they are seeking in excess of $15 million from Plaintiffs on their counter-claims. In short, the fact that the financial and other stakes in this case are high for both sides supports allowing the requested discovery.

Two other issues bear mentioning. First, Plaintiffs have asked that Defendants be required to produce the metadata for any documents responsive to the electronic search, claiming that it could show who created or accessed the document, or could even “demonstrate that Defendants altered potentially incriminating documents.” (ECF No. 35, PageID.963). Again, Defendants claim – without factual support – that such metadata is neither relevant nor proportional to the needs of the case. (ECF No. 41, PageID.1260-62). The Court disagrees. In the context of this First Amendment retaliation case, metadata – showing who created a document and when, or who might have altered a document and when – is particularly relevant, and Defendants have not demonstrated that the purported burden of producing it is disproportionate to the case's needs.[2]

Finally, to the extent the request for production at issue calls for text messages, Defendants claim that their “telecommunications provider, Verizon, does not record text messages themselves, but only the phone numbers of text message recipients, and then, it retains those records only for 30 days.” (ECF No. 41, PageID.1273). Plaintiffs point out that, while that might be the case, Defendants should – at a minimum – be required to search the cell phones of all of the individual defendants, and “other key Canton representatives who have knowledge material to the case,” produce any responsive text messages, and provide an explanation of how the searches were conducted. (ECF No. 49, PageID.1340). The Court agrees that it is appropriate to search the individual defendants' cell phones, as it is certainly possible that they have retained text messages on their cell phones in excess of thirty days. To the extent such messages exist that are responsive to Plaintiffs' discovery requests, they must be produced.

Conclusion

For the foregoing reasons, Plaintiffs' Motion to Compel Discovery (ECF No. 35) is GRANTED IN PART and DENIED IN PART to the extent set forth below:

Defendants' Motion for Protective Order (ECF No. 36) is DENIED for the reasons set forth herein.

IT IS SO ORDERED.