HOWMEDICA OSTEONICS CORP. et al v. DJO GLOBAL, INC. et al
Filing
239
ORDER on Discovery Dispute. See Order. Signed by Magistrate Judge Tim A. Baker on 10/5/2018.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HOWMEDICA OSTEONICS CORP. A
subsidiary of Stryker Corporation,
STRYKER CORPORATION A New Jersey
corporation,
Plaintiffs,
v.
DJO GLOBAL, INC. A California corporation,
JAKE EISTERHOLD An individual,
ERIC HUEBNER An individual,
JUSTIN DAVIS An individual,
Defendants.
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No. 1:17-cv-00938-JRS-TAB
ORDER ON DISCOVERY DISPUTE
The parties appeared by counsel for a telephonic status conference on September 6, 2018,
regarding a discovery dispute concerning text messages to and from Matt Long, an employee of
Plaintiff Howmedica Osteonics Corp. In a prior discovery dispute, Howmedica successfully
argued that text message strings are akin to email chains, which are considered one document for
discovery purposes. When the Individual Defendants failed to show they should be permitted to
withhold some texts that they argued were irrelevant and embarrassing “locker room banter,” the
Court ordered production. The Court reasoned that the Individual Defendants appeared to have
withheld all embarrassing texts, even if they were relevant. The Individual Defendants now rely
on the same logic in an effort to compel Howmedica to turn over between 19,000 and 20,000
texts, despite the fact they do not contain any of the search terms in their ESI agreement.
At the conference and in the Court’s subsequent order [Filing No. 235] the Court
permitted the parties to file up to 20 disputed text message strings for in camera review. The
purpose of the review was to determine whether the withheld messages contain relevant
information such that the necessary effort and cost of producing the 19,000–20,000 withheld
texts would be proportional to the needs of the case.
Having spent significant time reviewing the 6,137 texts the parties submitted, the Court
finds that production of all the withheld texts is not proportional to the needs of the case.
Disbursed throughout the strings are texts containing sensitive information that Howmedica
would likely seek to withhold as privileged or designate as “for attorney’s eyes only” because it
pertains to confidential business information or trade secrets. The effort and cost of reviewing,
designating, and logging all the texts would be significant. And out of the 6,137 texts, the Court
found only five that are marginally relevant: 28808–12. This proportion is significantly lower
than the proportion of relevant texts the Court found when reviewing the texts the Individual
Defendants sought to withhold. [See Filing No. 218.] Further, requiring Howmedica to produce
all the texts irrespective whether one of the agreed upon search terms is present greatly reduces,
if not eliminates, the utility of the party’s ESI agreement. With this in mind, it is clear that
requiring Howmedica to produce another 19,000–20,000 texts is not appropriate. Nonetheless,
Howmedica must produce texts 28808–12 within seven days of this order.
Finally, in the Court’s order granting in camera review, the Court ordered Howmedica to
file the text message strings under seal. [Filing No. 235, at ECF p. 3.] Though Howmedica
emailed the texts to chambers, a review of the docket reveals they have not been filed.
Howmedica shall file the texts under seal within seven days.
Date: 10/5/2018
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution: All ECF-registered counsel of record by email.
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