1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 HUMANMADE, Case No. 23-cv-02349-HSG (PHK) 9 Plaintiff, ORDER RESOLVING DISCOVERY 10 v. DISPUTE REGARDING SEARCH TERMS, REQUESTS FOR 11 PRODUCTION, AND INTERROGATORIES DIRECTED TO SFMADE, et al., 12 DEFENDANT SFMADE Defendants. 13 Re: Dkt. 63

14 15 This case has been referred to the undersigned for discovery. See Dkt. 66. Now before the 16 Court is a joint letter brief regarding a dispute between the Plaintiff Humanmade and Defendant 17 SFMade concerning search terms for Defendant’s collection of documents responsive to Plaintiff’s 18 document requests and a related dispute regarding SFMade’s interrogatory responses. [Dkt. 63]. 19 The Court finds the dispute suitable for resolution without oral argument. Civil L.R. 7-1(b). 20 LEGAL STANDARD 21 Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery 22 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 23 proportional to the needs of the case.” Information need not be admissible to be discoverable. Id. 24 Relevancy, for purposes of discovery, is broadly defined to encompass “any matter that bears on, 25 or that reasonably could lead to other matter that could bear on, any issue that is or may be in the 26 case.” In re Williams-Sonoma, Inc.,

(9th Cir. 2020) (quoting Oppenheimer 27 Fund, Inc. v. Sanders,

(1978)); see also In re Facebook, Inc. Consumer 1 Sept. 29, 2021) (“Courts generally recognize that relevancy for purposes of discovery is broader 2 than relevancy for purposes of trial.”) (alteration omitted). 3 While the scope of relevance is broad, discovery is not unlimited. ATS Prods., Inc. v. 4 Champion Fiberglass, Inc.,

(N.D. Cal. 2015) (“Relevancy, for purposes of 5 discovery, is defined broadly, although it is not without ultimate and necessary boundaries.”). 6 Information, even if relevant, must be “proportional to the needs of the case” to fall within the 7 scope of permissible discovery. Fed. R. Civ. P. 26(b)(1). The 2015 amendments to Rule 26(b)(1) 8 emphasize the need to impose reasonable limits on discovery through increased reliance on the 9 common-sense concept of proportionality: “The objective is to guard against redundant or 10 disproportionate discovery by giving the court authority to reduce the amount of discovery that 11 may be directed to matters that are otherwise proper subjects of inquiry. The [proportionality 12 requirement] is intended to encourage judges to be more aggressive in identifying and 13 discouraging discovery overuse.” Fed. R. Civ. P. 26 advisory committee’s note to 2015 14 amendment; see also FREDRIC BELLAMY, ANNOTATED MANUAL FOR COMPLEX LITIGATION 15 FOURTH § 11.41, at 69 (Federal Judicial Center 2023) (Rule 26(b)(1)’s “underlying principle of 16 proportionality means that even in complex litigation, discovery does not require leaving no stone 17 unturned”). In evaluating the proportionality of a discovery request, a court should consider “the 18 importance of the issues at stake in the action, the amount in controversy, the parties’ relative 19 access to the information, the parties’ resources, the importance of the discovery in resolving the 20 issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 21 Fed. R. Civ. P. 26(b)(1). 22 The party seeking discovery bears the burden of establishing that its request satisfies the 23 relevancy requirements under Rule 26(b)(1). La. Pac. Corp. v. Money Mkt. 1 Inst. Inv. Dealer, 24

(N.D. Cal. 2012). The resisting party, in turn, has the burden to show that the 25 discovery should not be allowed.

The resisting party must specifically explain the reasons 26 why the request at issue is objectionable and may not rely on boilerplate, conclusory, or 27 speculative arguments. Id.; see also Blankenship v. Hearst Corp.,

(9th Cir. 1 carry a heavy burden of showing why discovery was denied.”). 2 The Court has broad discretion and authority to manage discovery. U.S. Fidelity & Guar. 3 Co. v. Lee Inv. LLC,

, 1136 n.10 (9th Cir. 2011) (“District courts have wide latitude 4 in controlling discovery, and their rulings will not be overturned in the absence of a clear abuse of 5 discretion.”); Laub v. U.S. Dep’t of Int.,

(9th Cir. 2003). As part of its 6 inherent discretion and authority, the Court has broad discretion in determining relevancy for 7 discovery purposes. Surfvivor Media, Inc. v. Survivor Prods.,

(9th Cir. 2005) 8 (citing Hallett v. Morgan,

(9th Cir. 2002)). 9 Moreover, the Court’s discretion extends to crafting discovery orders that may expand, 10 limit, or differ from the relief requested. See Crawford-El v. Britton,

(1998) 11 (holding trial courts have “broad discretion to tailor discovery narrowly and to dictate the 12 sequence of discovery”). For example, the Court may limit the scope of any discovery method if 13 it determines that “the discovery sought is unreasonably cumulative or duplicative, or can be 14 obtained from some other source that is more convenient, less burdensome, or less expensive.” 15 Fed. R. Civ. P. 26(b)(2)(C)(i). 16 ANALYIS 17 A. Dispute Regarding Seven Search Terms for ESI 18 Plaintiff Humanmade spends much of its argument describing the background of this 19 dispute, including allegations that SFMade has delayed producing documents responsive to 20 Humanmade’s requests. [Dkt. 63 at 1-2]. Humanmade complains that SFMade’s efforts to search 21 for and collect responsive documents was deficient, and that SFMade’s recent engagement of an 22 eDiscovery vendor has resulted in further delays because the Parties are unable to reach agreement 23 on all the search terms to be used to search for responsive documents.

24 SFMade confirms that it has engaged an eDiscovery vendor and represents that the Parties 25 have agreed on the five custodians whose electronic files are to be searched. Id. at 4. SFMade 26 indicates that the Parties have agreed on “several” search terms for the ESI database but dispute 27 seven search terms because they yield too high a hit count, thus making review of documents 1 representations to the Court that SFMade has produced no documents since April, id. at 3, 2 SFMade represents to the Court that SFMade has produced approximately 14,000 documents to 3 Humanmade in two productions following the retention of its eDiscovery vendor (which 4 according to SFMade resulted from searching approximately 30% of the documents agreed to be 5 searched using the agreed upon search terms). Id. at 4. 6 Plaintiff further argues that Defendant has refused to disclose hit counts resulting from the 7 seven disputed search terms and refuses “to provide an opportunity for Humanmade to propose 8 alternative terms.” Id. at 3. Contrary to Plaintiff’s representations, SFMade argues that 9 “Humanmade has been unwilling to engage in a discussion of modifying the search terms 10 following the search being conducted.” Id. at 5. 11 There is no dispute here over whether the document requests (and thus the seven search 12 terms directed to the document requests) lack relevance. Rather, the dispute is whether running 13 these seven additional search terms is or is not overly burdensome because they yield an excessive 14 number of allegedly irrelevant document “hits.” Neither Party has submitted all seven proposed 15 search terms to the Court, although SFMade has provided one of the proposed search terms as an 16 example. Id. 17 Because there is no dispute over relevance here, the Court FINDS that requiring some 18 number of additional search terms are directed to relevant evidence. The Court further FINDS 19 that requiring SFMade to run additional search terms, if appropriately drafted, and produce 20 responsive ESI documents and materials would be proportional to the needs of the case. 21 The Court is disappointed that the Parties appear to have failed at the kind of 22 communication during meet and confers which is expected and necessary for effective resolution 23 of discovery issues. The fact that the Parties have made drastically different representations to the 24 Court about who said what or who refused to provide information is equally disappointing. 25 Experienced counsel should be capable of and, indeed, are expected to resolve ESI and search 26 term disputes typically without the need for Court intervention, because eDiscovery issues are 27 common in the modern era and members of the bar are expected to be familiar with and capable of 1 The Court is also disappointed that SFMade has apparently failed to share statistics on hit 2 counts for the seven disputed search terms transparently with Plaintiff. “Parties are both 3 encouraged and expected to timely share eDiscovery statistics such as hit number results when 4 they have a dispute over eDiscovery issues such as search terms.” In re Social Media Adolescent 5 Addiction/Personal Injury Products Liability Litigation,

at *3 (N.D. Cal. June 6 28, 2024). Further, the Court is disappointed that Plaintiff has apparently failed to propose any 7 alterations to, limitations on, or modifications to any of the seven disputed search terms when 8 informed that they yield an excessive and unreasonably high number of hits (regardless of the 9 details of the statistics). “The Court is disappointed that all counsel here, who are expected to 10 negotiate reasonably and work in good faith in resolving discovery disputes, were unable to 11 propose and negotiate search terms for these documents.” Doe v. Kaiser Found. Health Plan, Inc., 12

at *3 (N.D. Cal. June 28, 2024). 13 Because counsel for both Parties have failed to properly negotiate over the seven disputed 14 search terms, the Parties have forced the Court to ORDER counsel to undertake the normal type 15 of search term negotiation and resulting ESI production that they should have done without the 16 need for Court intervention. See

The Court has discretion and authority to order discovery and 17 discovery dispute relief different from what the Parties seek. Crawford-El,

. 18 Accordingly and in the exercise of the Court’s discretion, the Court ORDERS as follows: 19 On or before close of business on Friday July 12, 2024, Defendant SHALL provide to 20 Plaintiff the hit count statistics resulting from running each of the seven disputed search terms 21 against Defendants database of collected ESI. On or before close of business on Monday July 22 15, 2024, Plaintiff SHALL provide Defendant with a set of up to seven modified search terms to 23 replace the original seven search terms, where the modifications shall be made for the purpose of 24 reducing the hit count to address overbreadth and undue burden. Plaintiff is on notice of this 25 deadline and is well advised to begin preparing modified search term proposals without delay and 26 prior to receiving the hit count statistics. On or before Thursday July 18, 2024, Defendant shall 27 run these proposed modified search terms (or any agreed-upon modifications thereto) against 1 As the Party in possession of the documents and ESI database from which discovery is sought, it 2 is generally expected and customary that SFMade should run test searches using the opposing 3 party’s proposed search terms to see if they return a reasonable and mutually agreeable hit count 4 (whether too high or too low). Defendant is on notice of this deadline and is well advised to 5 prepare and confer with its eDiscovery vendor to be ready to run the search term statistics 6 expeditiously. 7 The Court ORDERS lead trial counsel for the Parties to meet and confer either in person 8 (if located within 100 miles of each other) or by videoconference (if not located within 100 miles 9 of each other) in order to discuss and negotiate reasonably and in good faith regarding whether any 10 further modifications to the search terms are reasonably warranted in light of the document hit 11 count statistics. The Parties shall meet and confer promptly after the report of the hit counts from 12 the revised search terms, and shall propose, counter-propose, and negotiate any such reasonable 13 modifications and finalize the search terms on or before Monday July 22, 2024. Both lead trial 14 counsel are on notice of this deadline and are well advised to promptly discuss scheduling 15 mutually available times and dates to complete the meet and confer within the time frame required 16 by this Order, instead of waiting until after the hit count is reported to schedule the meet and 17 confer. 18 The Parties are ORDERED to timely share eDiscovery statistics such as hit number results 19 when they have a dispute over eDiscovery issues such as search terms (i.e., like the current 20 dispute), and to timely and promptly propose and counterpropose modifications to search 21 terms. Further, in the meet and confers, the Parties are both encouraged and expected to have 22 persons involved or on-call who are knowledgeable about the technical operations and features of 23 eDiscovery systems, including (where appropriate) persons knowledgeable from their respective 24 eDiscovery service providers, to expedite discussions and disputes over technical feasibility 25 issues. 26 If the Parties are unable to finalize the search terms on or before July 22, 2024, then the 27 Partis SHALL file a Joint Notice by close of business on July 22, 2024, to inform the Court that 1 Notice shall be no longer than three (3) pages evenly divided between the Parties. Further, if the 2 Parties are unable to resolve the search terms, the Court ORDERS that lead trial counsel and 3 either the General Counsel or CEO of each Party SHALL all appear for an in-person hearing in 4 Courtroom F on the 15th floor of the San Francisco courthouse for a hearing on this matter on 5 Tuesday July 23, 2024 at 12:00 pm. On the morning of July 23 prior to the hearing, the Parties 6 SHALL file with the Court (and submit a copy to [email protected]) a chart setting 7 forth the seven disputed search terms and, for each such remaining disputed term, the competing 8 final modified search term proposed by each Party, arranged in three columns labeled 9 appropriately. No remote appearance shall be allowed. Failure to attend this hearing, should 10 it be necessary, shall result in any appropriate sanctions. The Parties can obviate the need for 11 this hearing by appropriately meeting and conferring to finalize the search terms. 12 Once the search terms are finalized, SFMade shall run the finalized search terms against 13 SFMade’s ESI database and produce the responsive documents resulting from that search on a 14 rolling basis starting no later than Friday July 26, 2024. SFMade shall complete any such 15 production by Wednesday July 31, 2024. Defendant is on notice of this deadline and is well 16 advised to prepare and confer with its eDiscovery vendor to be ready to run the finalized search 17 terms and complete production timely. 18 Given the Fact Discovery cutoff date, and in order to expedite Defendant’s production of 19 ESI and obviate the need for delay caused by privilege reviews prior to production (and disputes 20 over privilege/work product issues), the Court hereby further ORDERS the Parties to employ the 21 following privilege/clawback procedures for eDiscovery: 22 If, after production of any ESI, any produced ESI material are subsequently alleged by any 23 Party to be subject to any applicable privilege (or if Plaintiff contends that production of any 24 specified ESI materials could constitute a waiver of any applicable privilege), then such produced 25 ESI documents SHALL BE DEEMED to have been inadvertently produced and should not have 26 been produced in the first instance, and no waiver shall be found. See Dkt. 45 at ¶ 11. 27 Accordingly, for any such ESI materials, Defendant shall promptly serve a “Clawback Notice” 1 log listing the document(s) or item(s) produced, and (iii) a new copy of the document(s) or 2 material(s) (utilizing the same Bates number as the originally produced document(s) or 3 material(s)) with the privileged or protected material redacted (if Defendant contends that only a 4 portion of the document contains privileged or otherwise protected material). If Defendant 5 contends that the entire document is privileged or otherwise protected, then Defendant shall 6 provide a slip sheet with the original Bates number(s) noting that the entire document is being 7 withheld to replace the clawed back document(s) or page(s). 8 Upon receipt of a Clawback Notice, all such documents or other materials or information 9 identified therein, and all copies thereof (including transcriptions, notes, or other documents which 10 extract, memorialize, summarize, or copy information from any such clawed back documents), 11 shall be promptly collected by Plaintiff, their counsel, counsel’s staff, and experts or consultants 12 (and those under their control), and those copies shall be promptly sequestered and either (at 13 Plaintiff’s option) returned to Defendant or destroyed by Plaintiff's counsel, who shall serve 14 promptly thereafter a certificate of destruction signed under oath by counsel for Plaintiff. No 15 Party shall use any such clawed back document, material, or information therein for any purpose, 16 until further Order of the Court. Plaintiff shall attempt, in good faith, to retrieve, sequester, and 17 either return or destroy all copies of the clawed back document(s) in electronic format promptly 18 after receiving a Clawback Notice. 19 Plaintiff may challenge an assertion of privilege with respect to ESI document(s) listed on 20 Defendant’s privilege log. The Parties shall follow the Court’s Standing Order for Discovery and 21 the dispute resolution procedures therein for raising any such challenges with the Court, if the 22 Parties are unable to resolve any such disputes through negotiation. The Parties are encouraged to 23 cooperate reasonably in resolving any such disputes through the meet and confer process. 24 Additionally, again in light of the Fact Discovery cutoff date and in order to expedite 25 Defendant’s production of ESI and obviate the need for delay caused by individualized 26 confidentiality designations under the Protective Order, the Court further ORDERS that for the 27 ESI produced as required herein, Defendant may designate such ESI at the highest level of 1 Defendant shall take reasonably prompt steps to re-designate ESI at the appropriate level of 2 confidentiality under the Protective Order, and Plaintiff may bring to Defendant’s attention 3 reasonable requests for re-designation of specified documents. The Parties shall cooperate 4 reasonably on re-designating confidentiality levels of ESI, particularly where the face of a 5 document demonstrates that a particular document deserves either lower confidential designation 6 or no confidential designation at all (such as webpage printouts, advertisements, and other publicly 7 available documents). 8 The Parties shall follow the Protective Order at ¶ 6.3 and the dispute resolution procedures 9 in the Court's Standing Order for Discovery for raising disputes over confidentiality re- 10 designations with the Court, if the Parties are unable to resolve any such disputes through 11 negotiation. The Parties shall cooperate reasonably in resolving any such disputes through the 12 meet and confer process. 13 In light of the ESI production schedule set forth herein, the Court further ORDERS the 14 Parties to meet and confer promptly to discuss and negotiate a reasonable schedule for completing 15 depositions of fact witnesses, including good faith cooperation on agreeing to take depositions 16 after the fact discovery cut-off date and agreeing (where necessary) to double track depositions. 17 The Court ORDERS the Parties to file a Joint Discovery Management Status Report on July 29, 18 2024, to report on the status of the ESI document production and the discussions for scheduling 19 the depositions. 20 The Parties SHALL NOT alter any of these deadlines absent a demonstration to the Court 21 that they discussed scheduling issues in good faith through reasonable meet and confers. Any 22 proposed reasonable extensions or modifications of these deadlines shall be submitted to the Court 23 by Stipulation and proposed Order demonstrating their good faith and reasonable meet and 24 confers, which the Court may, in its discretion, modify, reject, or approve. 25 The Court is disappointed at what appears to be a failure by the Parties’ counsel to 26 effectively engage in the meet and confer process for resolving discovery disputes. The Parties 27 and their counsel are again admonished to review and comply with the Court’s Guidelines for 1 Federal Rules of Civil Procedure, particularly Rules 1 and 26. See Fed. R. Civ. P. 26 advisory 2 committee’s note to 2015 amendment (“It is expected that discovery will be effectively managed 3 by the parties in many cases.”); Dkt. 68. 4 Able and experienced counsel, particularly lead trial counsel for the Parties here, are 5 expected to and should know better how to resolve disputes of the kind raised herein and how to 6 resolve them efficiently and without undue delay. If the Parties demonstrate an inability to resolve 7 discovery disputes in a reasonable manner consistent with Rules 1 and 26, as well as this Court’s 8 directives and Orders, the Court will consider imposing additional meet and confer procedures for 9 future discovery disputes, including but not limited to requiring any counsel directly involved in 10 any of the meet and confers to meet and confer in person; requiring in-person meet and confers 11 by lead trial counsel regardless of lead counsels’ geographic proximity; requiring meet and 12 confers to take place in person at the San Francisco courthouse or other location; requiring in- 13 house counsel or Party representatives (including officers and/or directors) to attend all meet and 14 confers; the imposition of appropriate sanctions (including monetary sanctions) for failure to 15 adequately and reasonably meet and confer; and/or any other sanction or other procedure the Court 16 deems appropriate in the circumstances. 17 B. Dispute Regarding Defendant’s Interrogatory Responses 18 Plaintiff’s portion of the letter brief argues briefly that Defendant’s interrogatory responses 19 are deficient. [Dkt. 63 at 3]. However, Plaintiff does not explain what the interrogatories are 20 seeking, what the deficiencies are, or how or why supplementing the response to the 21 interrogatories is not duplicative of depositions to be taken. Plaintiff devotes less than three 22 sentences total to this issue. This is insufficient to merit relief. 23 Because the Party seeking relief in a discovery dispute has the burden of demonstrating 24 need for the relief, and because here Plaintiff has failed to explain what the dispute consists of 25 (other than a generalized, boilerplate complaint that the interrogatory responses are somehow 26 deficient), Plaintiff’s motion for further supplemental interrogatory responses is DENIED. 27 // 1 C. Conflicting Representations to the Court 2 As noted above, the Parties provided contradictory representations of what happened 3 during the meet and confers in the letter brief. While the Court assumes counsel are aware of and 4 abide by their obligations under Fed. R. Civ. P. 11 when making such representations, the proper 5 administration of justice and the effective supervision of discovery in this matter requires the 6 Court to take steps to inquire when such discrepancies arise. 7 Accordingly, by no later than Monday July 15, 2024, lead trial counsel for Plaintiff shall 8 file with the Court a declaration under oath explaining all bases for Plaintiff’s representations to 9 the Court that: (1) “SFMade has only produced approximately one hundred documents (excluding 10 duplicates and un-readable machining software files)[,]” dkt. 63 at 1, (2) “As of the date of this 11 letter, SFMade still has not produced any additional documents since April[,]” dkt. 63 at 3, (3) 12 “However, SFMade flatly refuses to … provide an opportunity for Humanmade to propose 13 alternative terms[,]” dkt. 63 at 3, and (4) explaining how Plaintiff’s citation to Ex. 9 at 1 supports 14 the statement that “SFMade flatly refuses to provide an opportunity for Humanmade to propose 15 alternative terms,” dkt. 63 at 3. 16 Concurrently, by no later than Monday July 15, 2024, lead trial counsel for Defendant 17 shall file with the Court a declaration under oath explaining all bases for Defendant’s 18 representations to the Court that: (1) “Humanmade has been unwilling to engage in a discussion of 19 modifying the search terms following the search being conducted[,]” dkt. 63 at 5, (2) “As of today, 20 SFMade has made two productions to Humanmade following the retention of [eDiscovery vendor] 21 Consilio[,]” dkt. 63 at 4, and (3) “SFMade has produced roughly 14,000 documents to 22 Humanmade[,]” dkt. 63 at 4. 23 // 24 // 25 // 26 // 27 // 1 CONCLUSION 2 This Order RESOLVES Dkt. 63. To the extent the Parties request to be relieved of any of 3 the deadlines or procedures herein, they shall submit any such requests by Stipulation and 4 [Proposed] Order and shall therein explain their good faith and reasonable bases for such jointly 5 requested relief. 6 IT IS SO ORDERED. 7 Dated: July 10, 2024 8 ______________________________________ PETER H. KANG 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27