Deal Genius, LLC v. O2Cool, LLC
Deal Genius, LLC v. O2Cool, LLC
2023 WL 2299977 (N.D. Ill. 2023)
February 17, 2023
Favro, Philip J., Special Master
Summary
The court ordered Deal Genius to produce emails in native format and Microsoft Teams messages over a three-day period. The court also ordered Deal Genius to produce emails from Emily Greenfield that hit on Search Queries One through Five and to allow O2COOL to inspect emails involving Ms. Greenfield. The court denied O2COOL's requests for emails from nonparties and all other electronic communications involving Ms. Greenfield without prejudice. Sanctions may be imposed if the deleted ESI is unique and the plaintiff cannot produce the functional equivalent of the deleted ESI.
Additional Decisions
DEAL GENIUS, LLC, a Delaware Limited Liability Company, Plaintiff,
v.
O2COOL, LLC, a Delaware Limited Liability Company, Defendant
v.
O2COOL, LLC, a Delaware Limited Liability Company, Defendant
No. 21 C 2046
United States District Court, N.D. Illinois, Eastern Division
Filed: February 17, 2023
Counsel
David J. Thomas, Pro Hac Vice, Honigman LLP, Bloomfield Hills, MI, William Butler Berndt, Ron N. Sklar, Honigman LLP, Chicago, IL, for Plaintiff.Michael Anthony Parks, Sartouk H. Moussavi, Thompson Coburn LLP, Chicago, IL, for Defendant.
Favro, Philip J., Special Master
SPECIAL MASTER REPORT NO. 6 REPORT RE STATUS OF DISPUTES OVER THE PRODUCTION OF EMAILS AND THE FAILURE TO PRESERVE EMAILS
*1 Pursuant to the Court's September 23, 2022 Order Appointing Philip Favro As Special Master (“Special Master Appointment Order”),[1] the Special Master hereby provides the following REPORT regarding the status of the discovery disputes between Plaintiff and Counterclaim-Defendant Deal Genius, LLC (“Deal Genius”) and Defendant and Counterclaimant O2COOL, LLC (“O2COOL”).
1. This Report addresses two outstanding disputes between the Parties. The first of those disputes involves Deal Genius's production of certain emails. The second concerns Deal Genius's failure to preserve certain emails from one of its former employees, Emily Greenfield. For each issue, the Special Master has memorialized in this Report corresponding Recommendations to the Court regarding disposition of the issues.
I. DISPUTES RE DEAL GENIUS'S DOCUMENT PRODUCTION IN RESPONSE TO SEARCH QUERY ONE
2. In this patent litigation involving claims and counterclaims for invalidity and infringement, the Parties have been “bitterly divided” for some time now over issues relating to the production of relevant emails.[2] Those disputes involve, among other things, concerns from O2COOL that Deal Genius has not made fulsome email productions from its five designated email custodians. The five Deal Genius emails custodians are Chris Matsakis, Monica Matsakis, Emily Greenfield, Dave Sienna, and Ram Subrahmanya. Those disputes eventually culminated in the appointment of the Special Master.[3]
3. To facilitate and possibly expedite a resolution of these disputes, the Special Master worked with the Parties to execute a stipulation and order (“11/7/22 Order”) that would require Deal Genius to redo its production of documents in response to O2COOL Search Query One.[4] The 11/7/22 Order was designed to address deficiencies with Deal Genius's production that arose because Deal Genius conducted searches for relevant emails in its Microsoft 365 platform.[5] As the Special Master has observed, the Microsoft 365 platform is replete with deficiencies that may prevent a responding party like Deal Genius from generating reliable search results and thus satisfying the Rule 26(g)(1) reasonable inquiry standard.[6] The Special Master limited the 11/7/22 Order to Search Query One and did not address O2COOL's disputes regarding Deal Genius's production of documents in response to Search Queries Two through Five.[7]
4. Deal Genius subsequently represented to O2COOL and the Special Master that it complied with its obligations under the 11/7/22 Order. During a conference with the Special Master held on January 11, 2023 (“1/11/23 Conference”), the Parties represented that Deal Genius produced 2,276 additional documents in response to Search Query One.
*2 5. O2COOL subsequently raised multiple issues with Deal Genius's production in response to the 11/7/22 Order. Those issues were generally discussed during the 1/11/23 Conference before the Special Master and during the Court's January 12, 2023 status conference hearing (“1/12/23 Hearing”). In its Order after the 1/12/23 Hearing, the Court directed the Parties to “attempt to informally resolve any issues relating to Deal Genius's production of documents pursuant to the 11/7/22 Order ... [and] [i]f necessary, schedule a further video conference with Mr. Favro to facilitate a resolution of their disputes.”[8] The Parties exchanged meet and confer letters and met informally multiple times in an attempt to resolve their issues, all of which were unsuccessful.
6. O2COOL has raised four issues with Deal Genius's document production that remain unresolved:
A. Deal Genius Should Produce Certain Emails in Native Format;
B. Deal Genius Should Address Irregularities with Certain Emails;
C. Deal Genius Should Produce Other Emails in Native Format; and
D. Deal Genius Should Produce Additional Emails in Native Format and the Production of Other Deal Genius emails.
A. O2COOL's Request that Deal Genius Produce Certain Emails in Native Format
7. O2COOL argues that Deal Genius should produce certain emails in native format that were previously produced in PDF. In support of this argument, O2COOL asserts that Deal Genius did not take appropriate preservation steps on various fronts as evidenced by the missing Emily Greenfield emails, the laptop belonging to Greenfield that Deal Genius ordered wiped, and its failure to produce certain emails in response to the 11/7/22 Order that Deal Genius previously produced in discovery and that should have been responsive to Search Query One. Given these preservation shortcomings, O2COOL argues that a native format production of DG-00000318, DG-00005626, and DG-00005626 is necessary to confirm that Deal Genius actually preserved the native format emails.
8. In response, Deal Genius represents that it has native format versions of the emails in question and that it has no obligation to produce the emails a second time in native format since it already produced the emails in PDF and the parties’ previously agreed they would not produce emails in native format. Deal Genius also disputes that it has not taken adequate preservation measures relating to the emails in question.
9. After examining the Parties’ meet and confer correspondence, listening to their arguments at a conference with them on February 14, 2023 (“2/14/23 Conference”), and reviewing their post-conference submissions, the Special Master RECOMMENDS that O2COOL's request be denied without prejudice. The Special Master finds that O2COOL has not provided fact specific good cause to justify the production of the emails in question in native format. The Special Master cannot conclude at this time that other Deal Genius emails are lost simply because Deal Genius failed to preserve the missing Greenfield emails and the wiped laptop, and because the documents were not produced a second time in discovery. When it comes to discovery issues like this one, courts—including Judge Cole—have emphasized that “ ‘saying so does not make it so.’ ”[9]
10. Nevertheless, the Special Master is concerned by Deal Genius's refusal to produce the handful of emails at issue in native format, which could arguably dispense with this and other issues O2COOL has raised. Deal Genius has repeatedly touted its record of cooperation throughout the discovery process, but its lack of cooperation and transparency on this issue is troubling. Saying you are cooperative “does not make it so.”[10] The Special Master reminds the parties that they are duty bound to pursue a course of cooperation that can lead to the “just, speedy, and inexpensive” disposition of issues.[11] Accordingly, the Special Master further RECOMMENDS that the Parties continue to meet and confer and find a way to resolve this dispute.[12]
B. O2COOL's Request that Deal Genius Address Irregularities with Certain Emails
*3 11. O2COOL raised concerns regarding Deal Genius's production of three documents (DG-00053501, DG-00053502, and DG-00053503) that did not appear to be emails. During the 2/14/23 Conference, Deal Genius disclosed for the first time that the “emails” about which O2COOL had raised concerns were not emails at all, but were instead messages exchanged by Deal Genius employees on the company's Microsoft Teams messaging platform.
12. Because the documents in question only reflected in each instance a single, isolated communication, O2COOL requested that additional Microsoft Teams messages exchanged by Deal Genius employees both before and after the single communication be produced for purposes of context. The Special Master readily agreed with O2COOL's request and ordered Deal Genius to produce additional Microsoft Teams messages exchanged on the same communication string on the day the communications at issue took place, along with the preceding and following days. The Special Master permitted Deal Genius to redact irrelevant messages from the Microsoft Teams messages while admonishing Deal Genius not to produce message strings replete with redactions.
13. The Special Master RECOMMENDS that the Court adopt as its ruling on this issue the Special Master's decision that Deal Genius produce the Microsoft Teams message strings over a three-day period as set forth in Paragraph 12 of this Report. The Special Master RECOMMENDS that the production order require that Deal Genius produce this information on or before February 28, 2023.
14. Finally on this issue, the Special Master is unsettled by Deal Genius's recent production of relevant Microsoft Teams messages. As the Special Master understands it, this is Deal Genius's first production of Teams messages even though O2COOL appears to have sought production of such information over one and one-half years ago. That Deal Genius may have overlooked, ignored, or withheld responsive Teams messages in discovery raises serious concerns and the Special Master RECOMMENDS further inquiry into this aspect of Deal Genius's discovery conduct. Failure to conduct a reasonable search or permit discovery of relevant information may justify the imposition of severe discovery sanctions.[13]
C. O2COOL's Request that Deal Genius Produce Other Emails in Native Format
15. In its first meet and confer correspondence, O2COOL sought clarification regarding the origin and nature of five emails (DG-00047992, DG-00047212, DG-00047426, DG-00047520, and DG-00047614) that Deal Genius produced in response to the 11/7/22 Order. In its response, Deal Genius indicated that the five documents were in fact emails and that the email custodian was “blind carbon copied on these documents,” which, Deal Genius argues, “explains they [sic] the custodian's name does not appear in any of those [email] fields.” O2COOL followed up by indicating its possible assent to Deal Genius's explanation, but requested a native format version of at least one of the five emails to “confirm” Deal Genius's explanation. Deal Genius has refused to provide native format versions of these emails, ostensibly for the same reasons articulated in Paragraph Eight of this Report.
16. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master does not believe this dispute is ripe for adjudication as the Parties have not sufficiently met and conferred. Consistent with Paragraph 10 of this Report, the Special Master directs the Parties to engage in cooperative advocacy and find a way to resolve this dispute. Accordingly, the Special Master RECOMMENDS that the Court DENY O2COOL's request without prejudice.
D. O2COOL's Requests for Additional Emails in Native Format and the Production of Other Deal Genius Documents
*4 17. In its final category of requests, O2COOL again seeks from Deal Genius the production in native format of particular emails, this time messages that Deal Genius produced in response to the 11/7/22 Order that appear to be “replies” and for which corresponding messages were not produced (e.g., DG-00069313). In addition, O2COOL seeks the production of documents that it anticipated receiving—but did not receive— from Deal Genius's production in response to the 11/7/22 Order. Those documents are referenced in emails (e.g., DG-00005626, DG-00001767-68) Deal Genius produced before the discovery cutoff.
18. In response to the native format production request, Deal Genius maintains that it is under no obligation to produce emails in native format, as memorialized in Paragraph Eight of this Report. Regarding the request that it identify certain documents referenced in DG-00005626 and DG-00001767-68, Deal Genius argues that such a request is untimely since it should have sought those documents before the close of fact discovery.
19. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master RECOMMENDS as follows. First, regarding the native format production request, the Special Master does not believe this dispute is ripe for adjudication as the Parties have not sufficiently met and conferred. Consistent with Paragraph 10 of this Report, the Special Master directs the Parties to engage in cooperative advocacy and find a way to resolve this dispute. Accordingly, the Special Master hereby RECOMMENDS that the Court DENY O2COOL's request without prejudice.
20. On the second item, because O2COOL's questions arise from documents Deal Genius produced before fact discovery cutoff, the Special Master concludes that O2COOL “has had ample opportunity to obtain the information by discovery in the action” and pursuant to Rule 26(b)(2)(C)(ii), RECOMMENDS that the Court deny this request with prejudice. As Judge Cole has repeatedly told the Parties, “[a]ll good things, including discovery, must come to an end.”[14]
II. DEAL GENIUS'S FAILURE TO PRESERVE CERTAIN EMAILS FROM ONE OF ITS FORMER EMPLOYEES, EMILY GREENFIELD
21. At the 1/12/23 Hearing, O2COOL raised issues regarding the deletion of certain information from former Deal Genius employee, Emily Greenfield. The deleted information includes Deal Genius's email account for Ms. Greenfield and a laptop that Deal Genius wiped that Ms. Greenfield used while working for Deal Genius. To help determine whether any of the deleted information was relevant and proportional to the claims or defenses in this litigation, the Court ordered Deal Genius to provide O2COOL with several details relating to Ms. Greenfield's emails.[15] In addition, the Court asked Deal Genius to indicate whether it would allow O2COOL to inspect emails—or a random sample of those emails—involving Ms. Greenfield (as a sender, direct recipient, or a carbon or blind copied recipient) that Deal Genius had recovered from other employee custodians.[16]
22. In response, Deal Genius provided certain information relating to Ms. Greenfield's emails, but refused to allow O2COOL to inspect any of emails involving Greenfield that Deal Genius recovered and that had not been previously produced during discovery. Not surprisingly, this precipitated additional disputes between the Parties including various exchanges of correspondence, six specific demands from O2COOL relating to Ms. Greenfield's emails, and repeated requests from the Special Master that the Parties work cooperatively and informally to resolve their disputes. The six demands that O2COOL raised relating to Ms. Greenfield's emails are memorialized below:
*5 A. Production of Emails from Ms. Greenfield;
B. Deposition of Emily Greenfield;
C. Production of Emails from Nonparties Deepak Nagrani or Kumar Karnani;
D. Production of Emails from Former Deal Genius Employee Ryan Germain;
E. Production of Other Electronic Communications from Ms. Greenfield; and
F. Responses to Interrogatories regarding Deal Genius's Information Systems and Communication Policies and Practices.
A. Production of Emails from Ms. Greenfield
23. O2COOL has demanded that Deal Genius produce emails on which “Ms. Greenfield was a sender, recipient, or copied (blind or carbon) from all current/former Deal Genius employees” and that hit on Search Queries One through Five. O2COOL argues that it is entitled to obtain these emails given that Deal Genius deleted Ms. Greenfield's entire Microsoft 365 mailbox account and considering that Greenfield is a key witness on issues relating to its claims.
24. In response, Deal Genius maintains that “Ms. Greenfield's custodial emails have already been produced” and that Deal Genius “does not expect” that further discovery on the recovered Greenfield emails will result in the production of relevant evidence.
25. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master RECOMMENDS that the Court order Deal Genius—after conducting a relevance and privilege review—to produce all emails on which Ms. Greenfield was a sender, recipient, or copied (blind or carbon) that hit on Search Queries One through Five and that Deal Genius do so on or before March 17, 2023. The Special Master's recommendation is based on several findings.
26. As an initial matter, the Court already ordered Deal Genius to run Search Queries One through Five against Ms. Greenfield's emails. While neither the 11/7/22 Order nor the 1/30/23 Order specifically list the particular custodians whose emails Deal Genius was to search, Deal Genius cannot reasonably dispute that it was obligated to run searches against the five email custodians that O2COOL previously designated, which included Ms. Greenfield.[17] That Deal Genius—as recently as February 13, 2023—refused to allow O2COOL to conduct an inspection of even a sample of those emails is astonishing given the 11/7/22 and 1/30/23 Orders and belies Deal Genius's self-proclaimed record of cooperation.
27. In addition, the Special Master has concluded that Ms. Greenfield is a “key player” in this litigation. For nearly 20 years since the landmark Zubulake V decision, parties and their counsel have been aware that “key players” include those individuals “identified in a party's initial disclosure and any subsequent supplementation thereto.”[18] In the instant matter, the Special Master reached his conclusion that Ms. Greenfield is a key player based on the following admissions from Deal Genius: (1) The presence of Ms. Greenfield's name in its Rule 26(a)(1)(A) initial disclosure; (2) the areas (marketing and marketplaces relating to Deal Genius's allegedly infringing product) on which Deal Genius made Greenfield available as a witness, which are relevant to O2COOL's claims; (3) that Ms. Greenfield was only one of four witnesses that Deal Genius identified in its initial disclosure; (4) Deal Genius's identification of Ms. Greenfield in its interrogatory responses as having “discoverable information” relating to the allegedly infringing product and the instant litigation; and (5) Ms. Greenfield's presence on various privileged communications.
*6 28. Finally, Deal Genius turned over 2,276 emails (family complete) in response to the 11/7/22 Order that it previously failed to identify or produce given the substandard search methods it first used to identify relevant, responsive information.[19] Based on the results of that production, the Special Master reasonably anticipates that Deal Genius—after running Search Queries One through Five—will likely find and produce responsive information from the recovered Greenfield emails that was not previously identified or produced in discovery.
29. Finally, the Special Master observes that this RECOMMENDATION is essential for determining whether the missing Greenfield emails are “lost” for purposes of Rule 37(e). This element—whether relevant and proportional ESI been lost—can only be satisfied if the movant demonstrates that unique discoverable evidence is no longer available.[20] If the missing Greenfield emails are not unique and can be adequately supplemented by messages from the recovered Greenfield emails, then a motion for sanctions under Rule 37(e) cannot succeed. However, this showing can only be made if Deal Genius runs Search Queries One through Five against the recovered Greenfield emails and produces relevant and proportional hits to O2COOL. Under these circumstances, it is essential that Deal Genius comply with the 11/7/22 and 1/30/23 Orders and with this RECOMMENDATION.
B. Deposition of Emily Greenfield
30. The Special Master first raised the notion of O2COOL deposing Ms. Greenfield at the 1/11/23 Conference and again as the 1/12/23 Hearing as a method for identifying possible replacement evidence regarding the missing Greenfield emails.[21] Deposing Ms. Greenfield could also reveal what information she stored on her wiped laptop and whether there are (or not) emails or other ESI that—presently unknown to Deal Genius—could supplement the missing emails. Irrespective of whether the deposition leads to the conclusion that there is or is not adequate supplementary or replacement evidence for the missing emails and wiped laptop, the Special Master concludes that there is ample justification to support taking Ms. Greenfield's deposition.
31. After the 1/12/23 Hearing, the Court issued a general directive in the 1/12/23 Order that the Parties meet and confer on issues relating to the missing emails. In addition, the Special Master instructed the Parties to reach an agreement on the parameters of Ms. Greenfield's deposition. Nevertheless, the Parties still failed to come to an accord on those parameters before the 2/14/23 Conference.
32. After examining the Parties’ meet and confer correspondence, listening to their positions at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master delineates the boundaries of the Greenfield deposition as follows:
A. The deposition shall be scheduled after Deal Genius completes its production of relevant documents from the recovered Greenfield emails;
B. The deposition shall not exceed four and one-half hours;
*7 C. Document requests may be served with the deposition notice;
D. The topics of examination shall include:
i. Ms. Greenfield's recordkeeping and communications practices while at Deal Genius;
ii. The marketing and marketplace listing work Ms. Greenfield performed regarding the allegedly infringing product;
iii. Ms. Greenfield's communications methods (e.g., email, Microsoft Teams messages, text messages, etc.) and practices (the nature, frequency, and substance of her communications with individuals inside and beyond Deal Genius) relating to the allegedly infringing product;
iv. Whether Ms. Greenfield received a litigation hold notice and what actions she took to preserve relevant information; and
v. The contents of Ms. Greenfield's now wiped laptop.
E. The Parties shall each bear half of the cost of the deposition, with the Parties respectively maintaining the right to seek cost allocation under Rule 26(c)(1)(B) and, in the case of O2COOL, the recovery of fees relating to the deposition should it file and prevail on a motion under Rule 37(e); and
F. The Special Master will be available to hear and rule on objections during the pendency of the deposition.
33. The Special Master hereby RECOMMENDS that the Court order the deposition of Emily Greenfield in accordance with the conditions set forth in Paragraph 32 of this Report. The Special Master further RECOMMENDS that the deposition take place within two weeks after Deal Genius completes its production of relevant documents from the recovered Greenfield emails.
C. Production of Emails from Nonparties Deepak Nagrani and Kumar Karnani
34. O2COOL asserts that it is entitled to obtain emails from Deal Genius that involve nonparties Deepak Nagrani and Kumar Karnani during the relevant time period or, alternatively, leave to take their depositions and obtain documents directly from Messrs. Nagrani and Karnani. O2COOL argues that Ms. Greenfield “communicated directly with [Messrs. Nagrani and Karnani] with no other Deal Genius personnel present” and their communications—which could serve as a form of replacement evidence for the missing Greenfield emails—are highly relevant to its claims. Deal Genius disagrees with O2COOL's assertion and argues that O2COOL's discovery could have been obtained before fact discovery closed last year. Moreover, Deal Genius points out that Messrs. Nagrani and Karnani are not its employees and that it “cannot agree to further discovery on their behalf.”
35. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master RECOMMENDS that the Court deny O2COOL's request without prejudice since O2COOL has not provided fact specific good cause to justify the requested discovery regarding Messrs. Nagrani and Karnani. Before undertaking any further discovery, O2COOL must first examine Deal Genius's pending production from the recovered Greenfield emails and assess the information that Ms. Greenfield provides during her deposition. If, after completing those steps, there is still a need for further discovery, Deal Genius could then renew its request.
*8 36. Nevertheless, the Special Master is concerned that any subsequent discovery regarding Messrs. Nagrani and Karnani could delve into matters that Deal Genius should have examined before the close of fact discovery. For example, O2COOL has had Mr. Karnani's contact information in Hong Kong since Deal Genius first divulged that information on November 15, 2021. O2COOL apparently did not seek leave of the Court to obtain discovery directly on Mr. Karnani. At this point in the litigation, any affirmative discovery on Messrs. Nagrani and Karnani is inappropriate because O2COOL “has had ample opportunity to obtain the information by discovery in the action.”[22]
D. Production of Emails from Former Deal Genius Employee Ryan Germain
37. O2COOL additionally argues that Deal Genius should produce emails from the mailbox of one of its former employees, Ryan Germain, that are hit documents from Search Queries One through Five. In response, Deal Genius essentially contends that it would be unduly burdensome to review and produce those emails.
38. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master RECOMMENDS that the Court deny O2COOL's request without prejudice since O2COOL has not provided fact specific good cause to justify the requested discovery regarding Mr. Germain at this time. Just like its request for emails from Messrs. Nagrani and Karnani, O2COOL must first examine Deal Genius's pending production from the recovered Greenfield emails and assess the information that Ms. Greenfield provides during her deposition. If, after completing those steps, there is still a need for further discovery, Deal Genius could then renew its request.
39. Nevertheless, the Special Master is likewise concerned that any subsequent discovery regarding Mr. Germain could delve into matters that Deal Genius should have examined before the close of fact discovery. Moreover, discovery into Mr. Germain's emails would effectively render him a sixth Deal Genius email custodian and exceed the requirements of the local patent rules.[23] This would be tantamount to allowing O2COOL to conduct further affirmative discovery, which O2COOL “has had ample opportunity to obtain.”[24]
E. Production of All Other Electronic Communications Involving Ms. Greenfield
40. O2COOL contends that to the extent Deal Genius has other forms of written electronic communications “to which Ms. Greenfield is a party,” Deal Genius should produce all such communications. O2COOL identifies text messages, instant messages, and workplace collaboration tool platforms with messaging capabilities like Microsoft Teams as examples of “non-email electronic communications.” In response, Deal Genius argues that the Parties “agreed that email discovery is limited to emails” and that fact specific good cause has not been advanced to justify the production of other non-email electronic communications.
41. After examining the Parties’ meet and confer correspondence, listening to their arguments at the 2/14/23 Conference, and reviewing their post-conference submissions, the Special Master RECOMMENDS that the Court deny O2COOL's request without prejudice since O2COOL has not provided fact specific good cause to justify the requested discovery regarding Ms. Greenfield's non-email electronic communications. Just like its request for emails from Messrs. Nagrani, Karnani, and Germain, O2COOL must first examine Deal Genius's pending production from the recovered Greenfield emails and assess the information that Ms. Greenfield provides during her deposition. If, after completing those steps, there is still a need for further discovery, Deal Genius could then renew its request.
F. Leave to Serve Interrogatories on Deal Genius
*9 42. In its final demand relating to the missing Greenfield emails, O2COOL seeks leave to serve interrogatories designed to obtain details regarding Deal Genius's information systems and communication policies and practices. Like the preceding three requests, O2COOL's instant request lacks fact specific good cause. O2COOL should first review Deal Genius's pending production from the recovered Greenfield emails and assess the information that Ms. Greenfield provides during her deposition. If, after completing those steps, there is still a need for further discovery, Deal Genius could then renew its request. Accordingly, the Special Master RECOMMENDS that the Court deny O2COOL's request without prejudice.
SIGNED this 17th day of February, 2023.
Footnotes
Docket No. 75, filed September 23, 2022.
Docket No. 71, filed September 21, 2022.
Id.
Docket No. 91, filed November 7, 2022.
Docket No. 86, at ¶5, filed October 24, 2022.
Id.; see also Fed. R. Civ. P. 26(g)(1).
Docket No. 91, filed November 7, 2022; Docket No. 86, at ¶7, filed October 24, 2022. Regarding O2COOL's Search Queries Two through Five, Deal Genius is working to produce responsive documents to O2COOL on or before March 2, 2023 pursuant to a separate stipulation and order. See Docket No. 109, filed January 30, 2023.
Docket No. 105, filed January 12, 2023.
Vann-Foreman v. Illinois Cent. R.R. Co., No. 19 C 8069, 2020 WL 7385451, at *1 (N.D. Ill. Dec. 16, 2020), quoting United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010). See also Hamilton v. Illinois Dep't of Hum. Servs., No. 21 C 6373, 2023 WL 1980119, at *3, n.1 (N.D. Ill. Jan. 27, 2023) (citing additional cases for this same proposition).
Id.
Fed. R. Civ. P. 1 (“Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”); Chief Justice John G. Roberts, 2015 Year-End Report on the Federal Judiciary, Supreme Court of the United States at 7 (Dec. 31, 2015), https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (“judges and lawyers [must] work cooperatively in controlling the expense and time demands of litigation ... lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.”).
See Deal Genius, LLC v. O2 Cool, LLC, No. 21 C 2046, 2022 WL 874690, at *4 (N.D. Ill. Mar. 24, 2022) (“Counsel have more work to do; to accomplish what needs to be done, they need to take more reasonable positions and take them quickly and efficiently.”).
See, e.g., Fed. R. Civ. P. 26(g)(3); Fed. R. Civ. P. 37(c)(1); see also Philip Favro, Navigating the Discovery Chess Match through Effective Case Management, 53 Akron L. Rev. 31, 45-46 (2019).
U.S. ex rel. Taylor-Vick v. Smith, 513 F.3d 228, 233 (5th Cir. 2008).
Docket No. 105, filed January 12, 2023.
Id. at 2.
See Docket No. 86, at ¶6, filed October 24, 2022 (“... to facilitate discussions between the Parties regarding anticipated quality assurance measures that can better ensure that O2COOL's Search Query 1 targets relevant and proportional information among Deal Genius's five email custodians ...”) (emphasis added).
See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004).
See Docket No. 86, at ¶5, filed October 24, 2022.
Fed. R. Civ. P. 37(e); see Oracle Am., Inc. v. Hewlett Packard Enter. Co., 328 F.R.D. 543, 553 (N.D. Cal. 2018) (declining to impose sanctions under Rule 37(e) given that the deleted ESI was not unique and plaintiff had already produced or could produce the functional equivalent of the deleted ESI). See also Bhattacharya v. Murray, No. 3:19-CV-00054, 2022 WL 1510550, at *6 (W.D. Va. May 12, 2022), appeal denied, 2022 WL 2873176 (W.D. Va. July 21, 2022).
Fed. R. Civ. P. 37(e).
Fed. R. Civ. P. 26(b)(2)(C)(ii); see also U.S. ex rel. Taylor-Vick v. Smith, 513 F.3d 228, 233 (5th Cir. 2008).
See N.D. Ill. LPR ESI No. 2.6(d) (“Each requesting party shall limit its email production requests to a total of five custodians per producing party for all such request.”).
Fed. R. Civ. P. 26(b)(2)(C)(ii).