Taylor v. Shutterfly, Inc.

Filing 82

ORDER by Magistrate Judge Virginia K. DeMarchi re 79 Discovery Dispute re ESI Search Terms. (vkdlc2S, COURT STAFF) (Filed on 9/2/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MEGAN TAYLOR,

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Plaintiff,

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ORDER RE DISCOVERY DISPUTE RE
ESI SEARCH TERMS

v.

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SHUTTERFLY, INC.,

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United States District Court
Northern District of California

Case No. 18-cv-00266-BLF (VKD)

Re: Dkt. No. 79

Defendant.

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The parties ask the Court to resolve their dispute concerning the application of search

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terms/strings to defendant Shutterfly, Inc.’s (“Shutterfly”) electronically stored information

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(“ESI”). Dkt. No. 79. The Court held a hearing on the matter on September 1, 2020.
As explained below and during the hearing, the Court requires Shutterfly to apply seven

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modified search strings to its collection, and requires the parties to confer further regarding

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modifications to the proposed search that uses the standalone term “Groupon.”

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I.

BACKGROUND

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On behalf of a putative class of consumers, plaintiff Megan Taylor claims that Shutterfly

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placed misleading advertisements on Groupon’s website. Specifically, Ms. Taylor contends that

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the advertisements offered a “fixed dollar credit” that could be used to purchase products on the

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Shutterfly website, when in fact, customers received only a promotional code that could not be

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combined with other discounts or promotions offered on the Shutterfly website, and that Shutterfly

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customers were induced by these misleading advertisements to purchase these Groupon deals.

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Dkt. No. 62 ¶¶ 15-19, 24.

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The parties are currently engaged in discovery of Shutterfly’s ESI and disagree about

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which search terms or search strings should be applied to Shutterfly’s ESI collection to limit what

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Shutterfly must review for production to Ms. Taylor. Ms. Taylor has agreed, without prejudice to

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a later request for broader searches, that Shutterfly may apply seven of the eight search strings

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(strings 1-3 and 5-8), as modified by Shutterfly and as reflected in Exhibit C to the parties’

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discovery dispute letter. See Dkt. No. 79-3 at 3; Dkt. No. 79 at 3. According to the parties, the

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application of these seven search strings yields 28,336 documents for review (before de-

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duplication). Dkt. No. 79 at 3, 6.
In addition to these searches, Ms. Taylor asks that Shutterfly apply the standalone search

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term “Groupon” to its ESI collection. Id. at 3-5. Shutterfly objects that application of that term is
likely to yield an excessive number of irrelevant and non-responsive documents. Id. at 5-6.

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United States District Court
Northern District of California

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According to Shutterfly, application of the “Groupon” search term yields 21,705 unique

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documents for review in addition to the 28,336 documents hit by the seven other search strings.

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Id. at 8.

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II.

DISCUSSION
The issues before the Court are whether application of the “Groupon” search term will

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yield documents that are relevant to a claim or defense in the case and whether the review

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Shutterfly will have to undertake of documents hit by that term to identify responsive documents

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is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).
Ms. Taylor argues that this case implicates over 65,000 potential class members and up to

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$6.5 million in potential restitution. Dkt. No. 79 at 4-5. She argues that discovery of how

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Shutterfly employees communicated internally and with customers about the Groupon promotions

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at issue is critical to the questions of whether the advertisements were misleading and whether

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Shutterfly intended to mislead. Id. Ms. Taylor disputes that only a small number of Shutterfly’s

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Groupon promotions are at issue in the case, but she emphasizes that Shutterfly has resisted her

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efforts to obtain more information about the nature of the Groupon promotions Shutterfly offered.

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Id.

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Shutterfly disputes Ms. Taylor’s characterization of the potential value of the case. Id. at
8. In addition, Shutterfly says that it has advertised more than 200 hundred promotions on
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Groupon’s website during the period 2013-2018, only 14 of which involved the type of promotion

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that is the subject of Ms. Taylor’s complaint. Id. at 5-6. Shutterfly argues that the seven agreed

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search strings are tailored to capture documents likely to be relevant and responsive, and that the

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additional documents that will be captured by a standalone “Groupon” search term are very

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unlikely to be relevant or responsive. Id. at 8. Shutterfly anticipates that it will cost $25,000 and

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more than a week of review time to review the 21,705 documents hit by the “Groupon” search

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term. Id.
Ms. Taylor has asked Shutterfly to produce a random sample of 25 documents from those

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hit by the “Groupon” search term so that the parties can evaluate Shutterfly’s claim that that term

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produces an excessive number of irrelevant documents for review. Id. at 3, 7. Shutterfly objects

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United States District Court
Northern District of California

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to this proposal, even if the documents are provided under the terms of the protective order,

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because the documents are “commercially-sensitive” and Shutterfly suspects Ms. Taylor’s counsel

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may use what they see as a basis for bringing other cases or expanding this case. Id. at 8.
The Court agrees with Shutterfly that the standalone “Groupon” term appears likely to hit

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an excessive number of irrelevant and non-responsive documents for review, and the effort to

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review these documents is not proportional to the needs of the case, particularly given the other

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searches Shutterfly has agreed to undertake. However, the Court finds that Shutterfly has not

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provided sufficient information to permit Ms. Taylor to propose an alternative search string that

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could limit the ESI collection for review. Ms. Taylor’s random sample proposal may be a good

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way for her to obtain the information she requires.1 However, the Court finds that a more targeted

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approach—i.e., the exchange of representative examples of non-responsive and responsive

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documents—is more likely to ensure that the parties have the information they need to resolve this

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search term dispute.

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Accordingly, the Court orders as follows:

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1. Shutterfly must begin producing to Ms. Taylor, on a rolling basis, the ESI responsive to

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The Court finds no basis to conclude that Ms. Taylor’s counsel would use the documents
provided from such random sample for an improper purpose.
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the seven agreed search strings in Exhibit C to the discovery dispute letter.

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2. From the collection of 21,705 unique “Groupon” documents, Shutterfly must provide

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to Ms. Taylor representative examples2 of non-responsive documents that refer to

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Groupon deals other than the Groupon deals at issue in the case. These example

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documents may be designated under the protective order and may only be used for

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purposes of aiding the parties’ discussion of search terms.
3. From the same collection of unique “Groupon” documents, Shutterfly must produce to

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Ms. Taylor representative examples of responsive documents that refer to the Groupon

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deals at issue in the case. If Shutterfly cannot efficiently locate responsive examples in

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this collection, it shall identify responsive examples from the ESI collection produced

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United States District Court
Northern District of California

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by application of the seven agreed search strings.
4. The parties must then confer regarding how the “Groupon” search term may be

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modified to limit the volume of non-responsive documents for review.

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If the parties are unable to resolve their search term dispute, they may jointly file a supplemental

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discovery dispute letter with the Court.

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IT IS SO ORDERED.

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Dated: September 2, 2020

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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The Court does not specify the number of representative examples Shutterfly must provide to
Ms. Taylor; the parties should be able to agree on the number of examples that are necessary for
their discussion.
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