*1 Before the Court is Plaintiff Louisiana-Pacific Corporation (“LP”)'s Motion for Review of Nondispositive Order of Magistrate Judge filed February 1, 2019. (ECF No. 374; Magistrate Judge Order, ECF No. 367.) LP requests additional searches for discovery and claims Defendant James Hardie Building Products, Inc. (“JH”) has not proven that the requested searches are disproportionate to the needs of the case. (Memo in Support, ECF No. 376 at PageID 16330.) LP's objections are OVERRULED.

Background

LP filed a Motion to Compel on December 11, 2018. (ECF No. 345.) LP sought to compel JH “to search its sales and marketing employees' electronically stored information for documents, communications, and information responsive to LP's First and Third Sets of Requests for Production.” (Id. at PageID 15466.) JH filed a response on December 21, 2018. (ECF No. 349.) LP filed a reply on December 28, 2018. (ECF No. 352.) A telephonic discovery conference was held on January 18, 2019. (ECF No. 367.) Judge Holmes GRANTED IN PART LP's Motion to Compel by allowing LP to do a sample search of the electronically stored information for 35 JH salespeople at LP's expense initially. (Id.) LP had until January 25, 2019 to arrange for the sampling search. (Id.) LP did not arrange for the sampling search. (Response, ECF No. 379.)

On February 1, 2019 LP filed the present motion. (ECF No. 374.) JH responded on February 15, 2019. (ECF No. 379.) LP replied on February 22, 2019. (ECF No. 385.)

Standard of review

“The clearly erroneous standard applies only to factual findings made by the Magistrate Judge, while [his] legal conclusions will be reviewed under the more lenient contrary to law standard.” E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605–06 (W.D. Tenn. 2009) (citing Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D.Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir.1994)). “A finding [of fact] is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Harbison v. Thompson, No. 3:14-cv0409, 2015 U.S. Dist. LEXIS 29131, at *3 (M.D. Tenn. Mar. 10, 2015) (citing Adams County Reg'l Water Dist. v. Vill. of Manchester, 226 F.3d 513, 517 (6th Cir. 2000)).

Analysis

LP objects to two factual findings as clearly erroneous: first, that the searches of the entirety of JH's salespeople would cost JH $1 million; and second, that documents produced by the searches would be irrelevant. (Memo in Support, ECF No. 376 at PageID 16329.)

Cost of searches

“A party claiming undue burden or expense ordinarily has far better information—perhaps the only information—with respect to that part of the determination.” Fed. R. Civ. P. 26, Advisory Committee Notes (2015). The Magistrate Judge did not conclude that the additional discovery LP seeks, electronically stored information of over 350 salesforce people, would be more than $1 million, but she did note that JH thought that it would cost that much based on the initial cost for only two salespeople. (See ECF No. 367; Kuizenga Declaration, ECF No. 349-1 at ¶ 6.) JH is in the best position to determine how much a potential search of that magnitude would cost. Fed. R. Civ. P. 26, Advisory Committee Notes (2015). The Magistrate Judge's reliance on JH's opinion of the costs of discovery was not clearly erroneous.

Documents produced by the searches would be irrelevant

*2 The Magistrate Judge explained that LP must “show the relevancy of specific discovery requests for which it seeks to compel response” but that “LP makes no such particularized arguments.” (ECF No. 367 at PageID 15944.) “LP asserts generally that James Hardie must search the ESI of its entire sales force, presumably in responding to every one of LP's more than 171 requests for production of documents.” (Id.) The Magistrate Judge reasoned that “LP's broad contention that James Hardie's response to every single request for production requires an ESI search of the entire James Hardie sales force borders on a classic fishing expedition, which is enough to deny LP's motion to compel.” (Id.) The Magistrate Judge explained that “LP made no use of the information already produced by two James Hardie salespeople either in the preliminary injunction hearings or in explaining its motion to compel.” (Id. at PageID 15945.)

In support of its Motion for Review, LP attempts to highlight “exemplary documents” from a search of two of JH's salespeople. (Memo in Support, ECF No. 376 at PageID 16333.) JH points out that none of those documents were presented to the Magistrate Judge in the Motion to Compel or at the hearing on the Motion. (Response, ECF No. 379 at PageIDs 16376-77.) Arguments and evidence not presented to the Magistrate Judge in a motion to compel are waived. See e.g., Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (“[A]bsent compelling reasons,” parties may not “raise at the district court stage new arguments or issues that were not presented to the magistrate.”); Epac Techs., Inc. v. Harpercollins Christian Publ'g, Inc., No. 3:12-cv-0463, 2016 U.S. Dist. LEXIS 194764, at *7 (M.D. Tenn. Sep. 7, 2016) (“A party's failure to present arguments to a magistrate judge prior to his or her ruling waives that party's right to present those arguments to the district court on a Rule 72(a) motion.”) (citing Murr); Lewis v. United States, No. 02-2958 B, 2005 U.S. Dist. LEXIS 14508, at *5 n.2 (W.D. Tenn. June 20, 2005) (“[T]he Court, in reviewing an appeal of a magistrate judge's order, may not consider evidence not presented to the magistrate judge in the first instance.”).

LP does not address the issue of evidence not presented to the Magistrate Judge in its Reply. (See Reply, ECF No. 385.) Instead, LP attempts to continue to reference those exhibits to support its argument that additional discovery is highly relevant. (Id. at PageIDs 16413-14.) Because the Magistrate Judge was not able to consider that evidence before ruling on the Motion to Compel, it cannot be used on LP's Motion for Review to establish the relevancy of additional searches.

The Magistrate Judge did not conclude that the documents would be irrelevant; she found “a minimal relevancy showing at best” and that proportionality, including the needs of the case, “dictates that LP should bear the cost of the requested discovery.” (ECF No. 367 at PageID 15945.) During the January 18 discovery conference, the Magistrate Judge offered for LP to start with a sampling search of electronically stored information of 35 JH salespeople and “the cost to be born by LP, at least initially.” (Id. at PageIDs 15944-45.) The sample search would have been “with reservation of LP's right to seek additional discovery from the remainder of the James Hardie sales force (upon an appropriate showing) and to reallocate the cost of the sampling discovery based on discovered information.” (Id. at PageID 15945.) LP did not avail itself of that option. (Response, ECF No. 379.)

Conclusion

The Magistrate Judge's factual determinations about whether additional discovery would be relevant were not clearly erroneous. The Magistrate Judge designed an appropriate plan for discovery given proportionality and the needs of this case. There is no reason for the Court to upset the ruling of the Magistrate Judge. LP's objections to the Magistrate Judge's January 18, 2019 Order are OVERRULED.

*3 JH seeks an award of its costs for opposing LP's Motion to Review and LP's Motion for Reconsideration. (Response, ECF No. 379 at PageID 16383.) JH's request for costs is referred to the Magistrate Judge for determination.

SO ORDERED, this 26th day of March, 2019.