Baranco v. Ford Motor Company et al

Filing 92

ORDER by Judge Edward M. Chen re: 91 Discovery Letter Brief. (emclc1, COURT STAFF) (Filed on 4/10/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID BARANCO, et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-03580-EMC ORDER RE: JOINT DISCOVERY LETTER v. FORD MOTOR COMPANY, et al., Docket No. 91 Defendants. 12 13 The parties dispute the extent to which Ford must disclose its search methods and 14 parameters. It is well-established that, when search terms are used in ESI discovery, the parties 15 should cooperate to select reasonable search terms and custodians. See N.D. Cal. Guidelines for 16 Discovery of ESI, 1.02, 2.02-2.03; De Abadia-Peixoto v. U.S. Dep’t of Homeland Sec., No. 11-cv- 17 04001, 2013 U.S. Dist. LEXIS 120368, at *10 (N.D. Cal. Aug. 23, 2013) (ordering defendant to 18 disclose search parameters and to meet and confer regarding their sufficiency); Burd v. Ford 19 Motor Co., Case No. 13-cv-20976, 2015 U.S. Dist. LEXIS 88518, at *36-37 (S.D. W. Va. Jul. 8, 20 2015) (rejecting argument that disclosure of search methods and custodians would infringe on 21 attorney work-product privilege). Here, Ford will not exclusively use ESI search terms, but also 22 other undisclosed collection methods it claims are more efficient. 23 Plaintiffs only seek information about what methods Ford intends to utilize; they do not 24 seek to compel Ford to utilize a particular method at this time. Compare In re Viagra (Sildenafil 25 Citrate) Prods. Liab. Litig., No. 16-md-02691, 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 26 2016). Ford claims its search methods are protected by the attorney-client or attorney work 27 product privilege. That contention is at odds not only with case-law and this Court’s guidelines, 28 but it is also inconsistent with Ford’s insistence that Plaintiffs will have an opportunity later to ask 1 deponents how they located responsive documents to assess search adequacy. If Plaintiffs can ask 2 later, then they can ask now. 3 Moreover, the purpose of meeting and conferring before documents are collected and 4 produced is to minimize the risk of an inadequate search. Transparency and cooperation prior to 5 document collection promote efficiency by reducing the risk that after-the-fact disputes will 6 necessitate a costly second or third iteration. It is true that a search’s adequacy cannot be finally 7 assessed until production is complete, but that does not mean that preliminary assessments are 8 impossible or unhelpful. Plaintiffs are entitled to tell Ford that searching the kitchen pantry for 9 spare tires will likely be inadequate. And Ford might counter that it will also search the garage. 10 United States District Court Northern District of California 11 The point is that these discussions should occur before expensive searches and depositions. The Court orders Ford to disclose its proposed search methodology, including the identity 12 of its custodians, so that Plaintiffs have a reasonable opportunity to provide their input, objections, 13 or suggestions as part of the meet-and-confer. Ford should also disclose its basis for believing that 14 its proposed search is proportional, adequate, and likely not to exclude responsive documents. 15 This order disposes of Docket No. 91. 16 IT IS SO ORDERED. 17 Dated: April 10, 2018 18 19 20 ______________________________________ EDWARD M. CHEN United States District Judge 21 22 23 24 25 26 27 28 2

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