The Court, after considering the relevant briefing and hearing arguments of counsel May 24, 2023, is of the opinion Cisco's motions should be DENIED.

In its first motion to compel, Cisco requests the Court order Dexon to supplement its initial disclosures and add four Dexon employees as ESI custodians subject to search terms agreed upon by the parties. In the E-Discovery Order entered September 26, 2022, the Court ordered the parties to produce ESI “on a rolling basis up to the deadline for substantial completion of document discovery,” which was January 6, 2023. Dkt. No. 55 at 3; see also Dkt. No. 66, ¶ 6 (further providing the parties shall not delay the production of documents until the deadline for substantial completion of document discovery). The E-Discovery Order also limited the production of e-discovery to no more than a total of eight custodians (ten search terms per custodian) per party. Dkt. No. 66, ¶ 8. The E-Discovery Order allowed the parties to raise contested requests for additional custodians or for additional search terms per custodian “upon showing a distinct need based on the size, complexity, burden, and issues of this specific case.” Id. at 7.

Dexon describes Cisco's request for four additional custodians as “payback” for the Court's February 8, 2023 Order granting Dexon's request for eight additional custodians (see Dkt. No. 117). Cisco describes its motion as merely “consistent” with the Court's prior order. Regardless of how one characterizes Cisco's request, the Court's prior order granting Dexon's request to increase the number of ESI custodians does not mandate granting Cisco's request to do the same. First, Dexon's request was granted, in part, due to serious questions about the sufficiency of Cisco's engagement in the discovery process and its production to date.[1] Cisco has shown less serious concerns with the sufficiency of Dexon's productions.[2] Second, the timing is meaningfully different – Dexon raised its request to add ESI custodians shortly after the January 6, 2023 substantial document production deadline (when Cisco produced one third of its production at that point); whereas Cisco filed its motion March 23, 2023, even though the substantial majority of Dexon's documents were produced in November 2022.

*2 At the hearing, Cisco stated it did not raise the issue in January because it was then arguing against Dexon's motion to expand the number of Cisco ESI custodians; therefore, Cisco did not want to undercut its opposition by separately asking for additional ESI custodians itself. Following the Court's ruling on February 8, however, Cisco waited another seven weeks to file the current motion and admitted it first raised the issue with Dexon on February 13. That timeline raises questions given that much of Dexon's document production was completed several months earlier in November of 2022. See Dkt. No. 159 at 1. Further, it was Cisco's strategic decision to forgo requesting additional ESI custodians from Dexon to strengthen its then position that there was no need to broaden ESI discovery in the case. Given this history, Cisco's “distinct need” for adding the four Dexon employees as ESI custodians would need to be plainly evident.

However, Cisco's motion fails to show how any of the four employees possess independently relevant documents, knowledge, or information to justify running additional search terms this late in fact discovery. Dexon represents it already conducted a company-wide search of the terms “CDW” and “Cisco” and produced all non-privileged documents in its possession, custody, and control, including those belonging to these four employees. Dkt. No. 159 at 5.[3] Dexon explains it ran agreed search terms on the already identified custodians who were involved in sales of Cisco products; yet, Cisco does not address whether these four employees possess additional relevant documents that are not duplicative of what it already has. See FED. R. CIV. P. 26(b)(2)(C)(i)). Without Cisco's having shown that including the four additional individuals would “lead to unique relevant evidence not already produced,” Entergy Gulf States Louisiana, L.L.C. v. Louisiana Generating, L.L.C., No. CV 14-385-SDD-RLB, 2021 WL 24686, at *8 (M.D. La. Jan. 4, 2021), the Court will not require Dexon to expend the additional costs and resources to collect and review documents from four additional custodians. Given the status of the case, and further considering Cisco's failure to demonstrate “a distinct need” for these additional custodians, Dkt. No. 66 at 7, the Court finds additional searches would be disproportionate to the needs of this case. Therefore, the Court denies Cisco's motion.

In its second motion to compel, Cisco requests the Court order Dexon to collect and search Dexon employee Michelle DeToy's personal Gmail account. Cisco has identified Ms. DeToy as one of several Dexon employees who used personal accounts for business purposes. Dkt. No. 186 at 6 (providing examples of Ms. DeToy's using Gmail for work purposes, including a supplier referring to it as her “backup email”).While Dexon has produced relevant personal emails from the other employees, Dexon has declined to search for Ms. DeToy's personal Gmail because, according to Dexon based on Ms. DeToy's affidavit, Ms. DeToy only used Gmail for administrative convenience purposes so she could work from home and does not recall any time in which she used her personal email “instead of” her work email. Dkt. No. 214 at 1, 3 (citing Declaration of Michelle DeToy, Dkt. No. 214-1). In other words, Dexon claims any email sent to or from Ms. DeToy's Gmail account for business purposes also would have been sent to or from her work email as well because she ensured both addresses were on the emails.

Cisco reasonably argues that it cannot effectively challenge Dexon's response without Dexon searching and producing the relevant emails from Ms. DeToy's Gmail account. Dkt. No. 186 at 6-7. However, that concern is somewhat mitigated by (1) Dexon's producing emails from other employees' personal email accounts when Dexon could confirm those employees conducted business solely with their personal email accounts, (2) Ms. DeToy's affidavit stating she never used her personal email in place of her work email, and (3) the absence of any email from the voluminous Dexon and third-party production showing Ms. DeToy's Gmail address was used in place of (as opposed to in addition to) her Dexon work email.

*3 The timing of Cisco's motion further supports a denial of this motion. Cisco first asked Dexon to search Ms. DeToy's personal Gmail account in January 2023, shortly before the substantial completion deadline in this case. Dkt. No. 214 at 1. After Dexon declined to do so in January, and again requested additional information on March 21, Cisco waited until May 9, 2023 to file the current motion. For the same reasons explained above with the ESI custodian issue, this dispute is raised too late for the off-chance that the search might produce a non-duplicative email. Accordingly, it is

ORDERED that Defendant Cisco Systems, Inc.'s Motion to Compel ESI Custodians (Dkt. No. 145) and Defendant Cisco Systems, Inc.'s Motion to Compel Production of Documents From Withheld Email Account (Dkt. No. 186) are DENIED.

SIGNED this the 31st day of May, 2023.

For example, Cisco initially delayed engagement in discovery while its motion to transfer and motion to dismiss were pending, in contravention of the local rules, (see Dkt. No. 56), then took several questionable positions that delayed ESI discovery, including failing to engage in good-faith negotiation for appropriate search terms (see Dkt. No. 117 at 6). The result was that as of the substantial document completion deadline, Cisco had produced 29,179 documents (10,956 on the last day) compared to Dexon's production of 200,000 documents (most of which were produced months prior). See Dkt. No. 101 at 1.

For example, on October 20, 2022, the Court clarified the E-Discovery Order to require Dexon to perform “a company-wide search for emails containing ‘CDW’ or ‘Cisco.’ ” Dkt. No. 83 at 2. In accordance with the Court's Order, Dexon claimed to have produced in November 2022 “all non-privileged documents” containing the terms “CDW” or “Cisco.” Dkt. No. 159 at 3. According to Dexon, this production included all documents referencing “Cisco” from the custodial files of the four individuals Cisco now seeks to add as ESI custodians in its current motion: Leo Kaas (Senior Vice President), Erik Valenzuela (Manager, eCommerce – Optdex), Brandon Tveitbakk (Account Executive), and Lisa Lang (Senior Account Executive).

The parties clarified at the hearing that Dexon has made recent productions concerning additional email accounts.