Baranco v. Ford Motor Company et al
Filing
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ORDER by Judge Edward M. Chen re: #91 Discovery Letter Brief. (emclc1, COURT STAFF) (Filed on 4/10/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DAVID BARANCO, et al.,
Plaintiffs,
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United States District Court
Northern District of California
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Case No. 17-cv-03580-EMC
ORDER RE: JOINT DISCOVERY
LETTER
v.
FORD MOTOR COMPANY, et al.,
Docket No. 91
Defendants.
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The parties dispute the extent to which Ford must disclose its search methods and
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parameters. It is well-established that, when search terms are used in ESI discovery, the parties
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should cooperate to select reasonable search terms and custodians. See N.D. Cal. Guidelines for
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Discovery of ESI, 1.02, 2.02-2.03; De Abadia-Peixoto v. U.S. Dep’t of Homeland Sec., No. 11-cv-
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04001, 2013 U.S. Dist. LEXIS 120368, at *10 (N.D. Cal. Aug. 23, 2013) (ordering defendant to
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disclose search parameters and to meet and confer regarding their sufficiency); Burd v. Ford
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Motor Co., Case No. 13-cv-20976, 2015 U.S. Dist. LEXIS 88518, at *36-37 (S.D. W. Va. Jul. 8,
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2015) (rejecting argument that disclosure of search methods and custodians would infringe on
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attorney work-product privilege). Here, Ford will not exclusively use ESI search terms, but also
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other undisclosed collection methods it claims are more efficient.
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Plaintiffs only seek information about what methods Ford intends to utilize; they do not
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seek to compel Ford to utilize a particular method at this time. Compare In re Viagra (Sildenafil
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Citrate) Prods. Liab. Litig., No. 16-md-02691, 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14,
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2016). Ford claims its search methods are protected by the attorney-client or attorney work
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product privilege. That contention is at odds not only with case-law and this Court’s guidelines,
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but it is also inconsistent with Ford’s insistence that Plaintiffs will have an opportunity later to ask
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deponents how they located responsive documents to assess search adequacy. If Plaintiffs can ask
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later, then they can ask now.
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Moreover, the purpose of meeting and conferring before documents are collected and
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produced is to minimize the risk of an inadequate search. Transparency and cooperation prior to
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document collection promote efficiency by reducing the risk that after-the-fact disputes will
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necessitate a costly second or third iteration. It is true that a search’s adequacy cannot be finally
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assessed until production is complete, but that does not mean that preliminary assessments are
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impossible or unhelpful. Plaintiffs are entitled to tell Ford that searching the kitchen pantry for
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spare tires will likely be inadequate. And Ford might counter that it will also search the garage.
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United States District Court
Northern District of California
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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
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of its custodians, so that Plaintiffs have a reasonable opportunity to provide their input, objections,
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or suggestions as part of the meet-and-confer. Ford should also disclose its basis for believing that
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its proposed search is proportional, adequate, and likely not to exclude responsive documents.
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This order disposes of Docket No. 91.
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IT IS SO ORDERED.
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Dated: April 10, 2018
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______________________________________
EDWARD M. CHEN
United States District Judge
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