ACI Worldwide Corp. v. MasterCard Technologies, LLC et al

Filing 181

ORDER - IT IS ORDERED that Defendants run Plaintiff's "Counterproposal Search Protocol" (Exhibit B to Plaintiff's August 7, 2015 letter) no later than September 11, 2015. Defendants shall produce the search results no later than September 16, 2015. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ACI WORLDWIDE CORP.,
Plaintiff,
V.
MASTERCARD TECHNOLOGIES,
LLC, and MASTERCARD
INTERNATIONAL, Incorporated,
Defendants.

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8:14CV31

ORDER

Plaintiff served Defendants with discovery requests seeking documents, files and
electronically stored information (“ESI”). Defendants objected to the production of this
information, asserting that production would be overly burdensome and invasive because it
would require Defendants to run a software program that could pose risks to their production
systems. In response to these concerns, Plaintiff devised a search protocol, which Defendants
found unacceptable. Consequently, Plaintiff filed a motion to compel, asking that the Court
compel Defendants to run its proposed search protocol and produce the requested materials.
In an order dated July 13, 2015, the Court found that Plaintiff had shown a particular
need for the requested information and that the information was relevant. (Filing 175.) The
Court stated, however, that it does not have the expertise necessary to determine the best
methodology to be employed in retrieving the materials in a safe and cost-effective manner.
The Court ordered the parties to confer in an effort to reach an agreement regarding the
search methodology to be used to collect the materials. The Court stated that in the event the
parties could not come to an agreement, it would refer the matter to a special master who
would oversee the production of ESI in the case. The Court directed the parties to submit
a status report advising the Court as to the outcome of the meet and confer conference no
later than July 20, 2015.
On July 20, 2015, the parties submitted a Joint Status Report (filing 177) advising that

they were still in the process of negotiating an acceptable search methodology. On August
7, 2015, Plaintiff’s counsel sent a letter to the undersigned advising that the parties were
unable to reach an agreement in full. Although the parties generally agreed to a search
protocol, they were unable to reach an agreement regarding the search terms to be used in
conducting the search. Plaintiff has proposed that a total of 15 terms be used, while
Defendants maintain that 9 search terms are sufficient. Defendants argue that Plaintiff’s
proposed search terms will generate an unreasonable number of “false positive hits,” or
search results that have no bearing on issues involved in this case. Defendants are concerned
that Plaintiff will use the false positives to expand upon its existing trade secret claims.
Under the federal rules, parties to a lawsuit may obtain discovery regarding any
matter, not privileged, that is relevant to a claim or defense of any party. Fed. R. Civ. P.
26(b)(1). The scope of permissible discovery is extremely broad. “Discovery requests
should be considered relevant if there is any possibility the information sought is relevant to
any issue in the case and should ordinarily be allowed, unless it is clear the information
sought can have no possible bearing on the subject matter of the action.” Met-Pro Corp. v.
Industrial Air Technology, Corp., No. 8:07CV262, 2009 WL 553017, * 3 (D. Neb. March
4, 2009).
As previously held, the materials Plaintiff seeks are relevant to the issues involved in
this case. Plaintiff has gone to great lengths to address Defendants’ concerns regarding the
search protocol to be employed, as well as the scope of search terms. Plaintiff initially
sought a twenty-six term search, but then narrowed its request to fifteen terms, and then, in
order to reach an agreement regarding this discovery dispute, offered to eliminate two
additional terms. Defendants have not shown that running Plaintiff’s proposed search would
be overly burdensome or convincingly shown that Plaintiff’s proposed protocol is otherwise
improper. Therefore, the Court will order Defendants to run the search protocol devised by
Plaintiff, which is attached to Plaintiff’s August 7, 2015 letter to the undersigned as “Exhibit
B.”
IT IS ORDERED that Defendants run Plaintiff’s “Counterproposal Search Protocol”
(“Exhibit B” to Plaintiff’s August 7, 2015 letter) no later than September 11, 2015.
Defendants shall produce the search results no later than September 16, 2015.
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DATED August 31, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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