A federal judge has ordered non-party Google to disclose the search terms and custodians it used to respond to a subpoena. The magistrate judge’s order in the Apple v. Samsung case pending in San Jose emphasized that “transparency and collaboration is essential to meaningful, cost-effective discovery.”
This order continues the growing trend of courts demanding cooperation in discovery, a trend likely to be further codified by the proposed changes to the Federal Rules of Civil Procedure. The order reiterates the importance of working out a discovery protocol before commencing discovery, even when third parties are participants in the discussion. Courts will not appreciate resolving disputes where there has not been a diligent effort to work out the issues. More importantly, litigants (and third parties) will likely save attorney’s and consultant’s fees—and time and effort—if a protocol including search terms and custodians is agreed to in advance of performing the search and producing documents and data. So if you receive a subpoena, encourage your counsel to work with the issuing party on the protocol before you begin searching for responsive documents and data. If you as counsel are responding to a subpoena, work with the issuing counsel before responding in order to ensure a more-efficient and likely less contentious production.
The magistrate judge’s order in Apple v. Samsung ruled on a discovery dispute that arose when Apple expressed concern about the adequacy of third party Google’s response to a subpoena. Apple asked Google to reveal the search terms it used and the custodians it asked to search for the responsive data. Google at first objected to providing the information with the argument that its search terms and choice of custodians were protected under the work-product doctrine. Google suggested instead that Apple propose search terms for Google to use. Apple declined to do so. Instead, Apple filed a motion with the court to order Google to reveal its search terms and custodians. In other words, this was not a motion to compel based on an inadequate production; Apple claimed it needed this information first to then analyze whether the response was adequate.
Google abandoned its work product objection once Apple filed its motion. The Court felt this was likely because the case law “suggests otherwise.”
Instead, Google argued to the court that producing the terms and custodians would be unduly burdensome. Again, Google suggested that it would review search terms that Apple proposed. The court rejected this argument because Google did not provide any evidence of the burden.
The court described the heart of Google’s argument as being “Google’s belief that its status as a third party . . . exempts it from obligations parties may have to show the sufficiency of their production, at least absent a showing by Apple that its production is deficient.” Google claimed that it would be “extraordinary” to require third parties to provide complete transparency in response to third-party subpoenas whenever an unsubstantiated claim was made that the production was deficient. Google argued it would open it up to additional burdensome discovery after Apple reviewed the custodians and search terms.
In response, the court emphasized that “transparency and collaboration is essential to meaningful, cost-effective discovery.” The court cited Judge Nolan’s analysis in DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010) of a similar dispute between a party to a lawsuit and a third party about the adequacy of the third party’s response to a subpoena. The court felt that Judge Nolan answered Google’s question when she
noted that the third party’s failure to promptly disclose the list of employees or former employees whose emails it proposed to search and the specific search terms it proposed to be used for each individual violated the principles of an open, transparent discovery process. But Judge Nolan also noted that the third party’s intransigence was no excuse for the defendants’ failure to suggest any search terms or custodians of its own. Looking to the principles of “cooperative, collaborative, and transparent discovery, electronic or conventional,” she explained that the proper and most efficient course of action would have been agreement by the third party and the defendants as to search terms and data custodians prior to the third party’s electronic document retrieval.
The court opined that Google and Apple had similarly failed to cooperate and collaborate in this case. The court ordered Google to produce its search terms and custodians within 48 hours and then ordered the parties to meet and confer in person about the lists to attempt to resolve any remaining disputes. The court did not opine on the sufficiency of Google’s production.