LightSquared Inc. et al v. Deere & Company et al

Filing 151

MEMORANDUM AND ORDER granting in part and denying in part 127 Motion to Compel. For the reasons set forth above, the plaintiffs' motion to compel (Docket No. 127) is granted in part and denied in part. The defendants Garmin and USGIC shall search for and produce documents from April 1, 2001, to February 14, 2012, related to (1) the out-of-band reception issue and (2) LightSquared's planned terrestrial operations. This production shall include documents responsive to RFP 5. Furthermore, the plaintiffs shall have seven (7) days from the date of this order to serve on Garmin interrogatories requesting the identities of individuals with knowledge of relevant technical issues and custodians in possession of documents relevant to those issues, stating with specificity what those technical issues are. Garmin will then have twenty-one (21) days to provide its response, which must take into account the forgoing discussion concerning the relevant issues in the case. The parties shall then submit within fourteen (14) days a joint discovery plan addressing a plan for completing any discovery necessitated by Garmin's response to the plaintiffs' interrogatories. The plaintiffs' motion is denied with r espect to (1) their request to compel searches of the files of the individuals named in their motion, (2) their request to compel production of documents responsive to RFPs 7 and 8, and (3) their request to compel the defendants to use the plaintiffs' proposed search terms. (As further set forth in this Memorandum and Order.) (Signed by Magistrate Judge James C. Francis on 12/10/2015) Copies Transmitted by Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
LIGHTSQUARED INC., LIGHTSQUARED
:
LP, and LIGHTSQUARED SUBSIDIARY
:
LLC,
:
:
Plaintiffs,
:
:
- against :
:
DEERE & COMPANY, GARMIN
:
INTERNATIONAL, INC., TRIMBLE
:
NAVIGATION LIMITED, THE U.S. GPS
:
INDUSTRY COUNCIL, and THE
:
COALITION TO SAVE OUR GPS,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Plaintiffs

LightSquared

13 Civ. 8157 (RMB) (JCF)

Inc.,

MEMORANDUM
AND ORDER

LightSquared

LP,

and

LightSquared Subsidiary LLC (collectively, “LightSquared”) move for
an order compelling defendants Deere & Company (“Deere”), Garmin
International, Inc. (“Garmin”), and the U.S. GPS Industry Council
(“USGIC”), to, among other things, produce documents and use
specific

search

obligations.1

terms

in

complying

with

their

discovery

For the reasons that follow, the motion is granted

in part.
Background
On

February

5,

2015,

the

Honorable

Richard

M.

Berman,

U.S.D.J., issued an order that describes in great detail the

1

On December 8, 2015, LightSquared filed a stipulation of
voluntary dismissal, releasing its claims against Deere pursuant to
a settlement agreement. (Stipulation of Voluntary Dismissal as to
Defendant Deere & Company at 1).
Accordingly, LightSquared’s
motion to compel production from Deere is moot, and I will construe
the motion as if it were filed only against Garmin and USGIC.
1

factual and legal issues presented by this case.

See LightSquared

Inc. v. Deere & Co., No. 13 Civ. 8157, 2015 WL 585655 (S.D.N.Y.
Feb. 5, 2015).

Accordingly, I offer here only a brief summary of

the case and a description of subsequent procedural developments as
necessary for purposes of deciding this motion.
In the late 1990s, LightSquared began to develop plans to
build and deploy a wireless broadband network employing both
satellite and terrestrial transmitters and receivers.

Id. at *4.

Over several years, the defendants raised various objections to
those plans based on concerns that the operation of LightSquared’s
network could interfere with GPS devices.

Id. at *4-6.

In 2009,

LightSquared and “representatives of Defendants” entered into
negotiations (the “Femtocell Negotiations”) to resolve concerns
having to do with LightSquared’s planned use of “low-power indoor
base stations called ‘femtocells[,]’ which are designed to improve
network coverage inside buildings.”

Id. at *5.

Although those

negotiations successfully resolved the defendants’ concerns, in
September 2010 the defendants disclosed a new technical problem.
Id. at *7.

They indicated that the operation of LightSquared’s

network made GPS devices susceptible to overload and malfunction
because those devices have the potential to receive transmissions
emanating from LightSquared’s authorized spectrum band (the “outof-band reception issue”).

Id.

The seriousness of this issue

caused the Federal Communications Commission (“FCC”) to block
indefinitely the operation of LightSquared’s planned network.
at *8.

Id.

According to the operative complaint, the defendants knew
2

about the out-of-band reception issue much earlier but failed to
disclose it to LightSquared in violation of a legal obligation to
do so.

Id. at *7, 15.

Judge Berman’s order dismissed all of LightSquared’s claims
against the defendants except for “negligent misrepresentation and
constructive fraud claims.”

Id. at *21.

Judge Berman found that

LightSquared’s surviving cause of action had four elements:
(1) [The defendants made] a false statement or omission
of fact involving a material issue; (2) the statement or
omission was in violation of a duty to exercise
reasonable care; (3) the plaintiff reasonably relied to
his detriment on the false information; and (4) the
defendant[s’] conduct was the proximate cause of
plaintiff’s injury.
Id.

at

*14

(second

alteration

in

original)

(quoting

Cordoba

Initiative Corp. v. Deak, 900 F. Supp. 2d 42, 49 (D.D.C. 2012).
Following Judge Berman’s ruling on the motion to dismiss, the
defendants asked the Court to order “initial, targeted discovery”
concerning the second element of the plaintiffs cause of action,
namely the defendants’ duty to disclose.
Douglas dated March 9, 2015, at 1).

(Letter of Philip Le B.

After a Pretrial Conference

with the parties, I entered a Case Management Plan setting March
31, 2016, as the close of fact discovery, but requiring discovery
related to the relationship between USGIC and the other defendants
to be completed by June 30, 2015.
April 3, 2015).
that,

among

(Case Management Plan dated

On October 8, 2015, Judge Berman entered an order

other

things,

required

the

parties

to

submit

expeditiously any discovery disputes to the Court and prohibited
the filing of motions for summary judgment until after the close of
3

discovery.

(Order dated Oct. 8, 2015).

present motion on October 16, 2015.

The plaintiffs filed the

(Notice of Motion dated Oct.

16, 2015).
In their motion papers, LightSquared asks that the Court
order:
1. Garmin and USGIC to produce documents responsive to
LightSquared’s requests for the period between March 1,
2001, and February 14, 2012;
2.
Garmin to produce responsive documents from
additional custodians, including Min Kao, Kenneth Kao,
Larry Swinney, John Farley, John Foley, Ted Gartner, and
Anne Swanson;
3. Garmin and USGIC to produce documents responsive to
LightSquared’s Requests for Production Nos. 5, 7, and 8;
and
4.
Garmin and USGIC to use LightSquared’s proposed
search terms in conducting Phase II discovery or
cooperate with LightSquared in developing a list of
terms.
(LightSquared’s Memorandum of Law in Support of its Motion to
Compel Production of Documents From Garmin, Deere, and USGIC (“Pl.
Memo.”) at 20-21).

The defendants oppose the plaintiffs’ proposed

order in every respect.

(Defendants’ Corrected Opposition to

LightSquared’s Motion to Compel (“Def. Memo.”) at 1-2).
Discussion
A.

Legal Standard

The 2015 amendments to the Federal Rules of Civil Procedure
“govern in all proceedings in civil cases” commenced after December
1, 2015, and, “insofar as just and practicable, all proceedings []
pending” on that date.

Order re: Amendments to Federal Rules of

4

Civil Procedure (April 29, 2015).2

No party has argued that the

application of the amended rules to this dispute is unfair or
impracticable, and I find no reason that they should not be applied
here.
The amendments to Rule 26(b)(1) allow discovery of “any
nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case . . . .”
Civ. P. 26(b)(1).

Fed. R.

While discovery no longer extends to anything

related to the “subject matter” of the litigation, relevance is
still to be “construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter that could bear
on” any party’s claim or defense.

Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978).

Moreover, information still

“need not be admissible in evidence to be discoverable.”

Fed. R.

Civ. P. 26(b)(1).
B.

Request to Produce Documents From 2001 to 2012

LightSquared’s first contention is that the defendants3 have
improperly limited the temporal scope of their search for documents
responsive

to

LightSquared’s

requests.

(Pl.

Memo.

at

7).

According to LightSquared, the defendants’ search should span from
March 1, 2001 -- i.e., “the date LightSquared filed its application
with the FCC” to authorize terrestrial transmissions within its

2

The order of April 29, 2015, can be found
http://www.supremecourt.gov/orders/ordersofthecourt/14.
3

at

Unless otherwise noted, references herein to “the
defendants” are intended to indicate the defendants from whom
LightSquared seeks production, i.e., Garmin and USGIC.
5

FCC-licensed spectrum band -- to February 14, 2012 -- i.e., “the
date the FCC recommended suspending LightSquared’s authority to
operate its network.”

(Pl. Memo. at 8).

LightSquared alleges that, as far back as 2001 when the
parties first engaged in negotiations regarding technical concerns
with LightSquared’s proposed network, the defendants failed to
disclose “that they had designed their receivers to ‘listen in’ on
LightSquared’s spectrum and that they were therefore subject to
potential overload.”

(Amended Complaint (“Am. Compl.”), ¶ 136).

The defendants’ alleged failure to disclose is an indispensable
element of LightSquared’s negligent misrepresentation claim.
LightSquared

Inc.,

2015

WL

LightSquared

argues

that

documents

negotiations

with

the

585655,

defendants

at

dating

*15.

Accordingly,

back

concerning

See

to

its

the

first

terrestrial

operations are potentially relevant to its claims, as they could
help to show (1) when the defendants knew about the out-of-band
reception issue and (2) when and what the defendants knew about
LightSquared’s plans to operate its terrestrial network.

(Pl.

Memo. at 9). The defendants do not dispute the potential relevance
of records dating back to 20014 but instead argue that they have
searched for such records to the extent necessary.

4

(Def. Memo. at

The defendants argue that the plaintiffs have belatedly
requested “to commence the discovery period one month earlier in
March 2010 [sic]” rather than April 2001. (Def. Memo. at 6 n.2).
The plaintiffs have conceded this issue and agreed to use April 1,
2001, as the operative cutoff. (LightSquared’s Reply Memorandum in
Support of its Motion to Compel Production of Documents From
Garmin, Deere, and USGIC (“Pl. Reply”) at 4 n.4).
6

6).5

The plaintiffs have, therefore, satisfied their burden of

establishing relevance with regard to documents from the post-March
2001

period

related

to

the

out-of-band

reception

issue

and

LightSquared’s terrestrial network.
As for the demand to extend the scope of discovery to February
2012, LightSquared argues that its request is calculated to reveal
further information about what the defendants knew (and when) about
the

out-of-band

reception

issue.

(Pl.

Memo.

at

10-11).

LightSquared reasons that, because the defendants were involved in
discussions concerning these same issues as late as 2012, it is
likely that they possess documents created during that time-frame
which are relevant to the question of what the defendants knew (and
when).

(Pl. Memo. at 10-11).

In opposition to this portion of the plaintiffs’ request, the
defendants first argue that, because the plaintiffs had notice of
the out-of-band reception issue by the end of 2010 at the latest,
that date should serve as the cut-off for discovery, as the
defendants’ own knowledge of that issue after the plaintiffs were
on notice is “legally irrelevant.”

(Def. Memo. at 7).

Although

the plaintiffs argue that the question of when they were on notice
is “a question of fact for the jury”

(Pl. Memo. at 10), the

parties’ dispute on this issue is beside the point.

The operative

consideration here is whether documents from the disputed period

5

I address the defendants’ argument about the sufficiency of
its discovery efforts in my assessment of LightSquared’s request
that the defendants expand their search for documents to include
additional custodians.
7

(i.e., the end of 2010 until February 2012) are relevant to
LightSquared’s negligent misrepresentation claim.

Fed. R. Civ. P.

26(b)(1).
More to the point, the defendants next argue that a search for
documents from the disputed period is unlikely to uncover evidence
that

Garmin

had

“2008-2009

knowledge

of

the

Femtocell

Negotiations.” (Def. Memo. at 8). Indeed, the defendants argue at
length

that

the

“uncontroverted

documentary

and

testimonial

evidence” in this case makes the plaintiffs’ arguments concerning
the potential relevance of documents from the disputed period “mere
conjecture.”

(Def.

Memo.

at

8-11).

From

the

defendants’

perspective, the upshot seems to be (1) that they cannot be liable
if they did not have contemporaneous knowledge of the Femtocell
Negotiations and (2) that the evidence in the case so far makes it
unlikely that documents from the disputed period will help to
establish such knowledge.

This framing, however, misunderstands

(or ignores) the plaintiffs’ argument concerning the disputed
period.
The crux of LightSquared’s position is that the defendants
were involved in discussions concerning the out-of-band reception
issue throughout the disputed period. (Pl. Reply at 5). Given the
defendants’ participation in those discussions, the plaintiffs
reason that “documents from [the disputed] period would shed light
on the extent of defendants’ knowledge and disclosure of the
overload issue.”

(Pl. Reply at 5).

Rather than refuting the

substance of the plaintiffs’ argument, the defendants suggest that
8

evidence concerning their knowledge of the out-of-band reception
issue

is

only

relevant

if

LightSquared

can

establish

contemporaneous awareness of the Femtocell Negotiations.
Memo. at 8 n.7).

their
(Def.

In other words, the defendants would have the

Court block discovery related to one aspect of the plaintiffs’
claim because there is (according to the defendants) insufficient
evidence

to

sustain

a

separate

aspect

of

that

claim.

The

defendants have not cited any authority that would support such an
outcome, which would frustrate a core purpose of discovery -namely to enable parties to “obtain the factual information needed
to prepare for trial.”

Gary Plastic Packaging Corp. v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230, 236 (2d Cir.
1985).

The defendants’ belief that the plaintiffs’ case lacks

merit is not a basis for curtailing discovery.

See Alexander v.

Federal Bureau of Investigation, 194 F.R.D. 316, 326 (D.D.C. 2000)
(stating that discovery cannot be denied on basis that requested
documents relate to claim being challenged as insufficient).
A plaintiff alleging fraud or misrepresentation will often
“need to show what the defendants knew at the time of the alleged
misrepresentations.”

Nairobi Holdings Ltd. v. Brown Brothers

Harriman & Co., No. 02 Civ. 1230, 2005 WL 742617, at *3 (S.D.N.Y.
March 18, 2005).

In such cases, “a time-frame for discovering

defendants’ knowledge of facts at issue must be sufficiently broad
to reveal evidence of the facts as well as evidence of where
defendants

learned

those

facts.”

Id.

LightSquared

has

sufficiently established the potential relevance of the disputed
9

period even though that time-frame post-dates the defendants’
alleged omissions.

See Assured Guaranty Municipal Corp. v. UBS

Real Estate Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at
*2 (S.D.N.Y. Nov. 21, 2012) (allowing discovery as to documents
that post-date relevant transaction on grounds that such documents
may retrospectively analyze facts relevant to claims at issue).
The

defendants,

appropriate

on

basis

the
for

other

hand,

denying

have

the

not

established

plaintiffs’

an

request.

Accordingly, the plaintiffs’ request is granted, and the defendants
shall produce documents from April 1, 2001, to February 14, 2012,
related

to

(1)

the

out-of-band

reception

issue

and

(2)

LightSquared’s planned terrestrial operations.
C.

Request to Produce Documents From Additional Custodians

The parties’ next dispute concerns the number of custodians
whose files Garmin has searched in response to LightSquared’s
requests,

and

LightSquared’s

demand

is

actually

threefold:

“[D]efendant[] should be compelled to expand its search of the
identified custodians to a reasonable and meaningful period of
time,

include

the

custodians

identified

[in

the

plaintiffs’

memorandum], and negotiate in good faith with LightSquared over
additional custodians.”

(Pl. Memo. at 15).

I will address each

request in turn.
LightSquared asserts that Garmin, in searching the files of
its custodians, confined its search to an eleven-month period for
five of its seven custodians.

(Pl. Memo. at 13).

Garmin does not

dispute that it has limited the scope of its searches, arguing
10

instead that the limitations were proper because no other custodian
is likely to have “relevant pre-2010 documents” (Def. Memo. at 13)
and because it rejects outright the proposition that any post-2010
documents are discoverable (Def. Memo. at 6-11). Although Garmin’s
arguments on this point have largely been addressed, another brief
consideration

of

its

position

is

relevant

to

the

ensuing

established

without

discussion.
In

Garmin’s

contradiction

that

view,

discovery

Garmin

did

not

“has
learn

of

the

Femtocell

Negotiations or the potential for LightSquared-caused GPS receiver
overload until April 2010.”

(Def. Memo. at 13).

Even if true,

this does not, as Garmin would have it, eliminate the need for
discovery on other issues.

A review of the parties’ voluminous

correspondence suggests that Garmin’s fixation on one issue (its
awareness of the Femtocell Negotiations) has caused it to adopt an
overly narrow interpretation of what “relevant” means for purposes
of discovery.

For example, Garmin wrote in a July 2015 letter

that, because “undisputed evidence” had established that it lacked
knowledge of the Femtocell Negotiations, “Garmin’s prior awareness
of the phenomenon of receiver overload [] could not possibly be
relevant.”

(Letter of Philip Le B. Douglas dated July 25, 2015,

attached as Exh. 57 to Declaration of Philip Le B. Douglas dated
Oct. 30, 2015 (“Douglas Decl.”), at 1-2).

As explained above, for

purposes of discovery, the relevance of documents relating to
Garmin’s awareness of the out-of-band reception issue does not
depend on establishing the merits of any other aspect of the
11

plaintiffs’ claim.
because,

having

Garmin would have the Court cut off discovery

assessed

the

evidence

produced

thus

far,

believes that the plaintiffs cannot establish liability.
Memo. at 13, 16).

it

(Def.

Again, Garmin’s view of the merits of the

plaintiffs’ case is not a proper basis to block discovery.
This brings me to the plaintiffs’ request that Garmin search
the files of seven additional custodians.

(Pl. Memo. at 14-15).

Although the plaintiffs have not satisfied their burden in this
regard, their failure is likely due to Garmin’s approach to
discovery in this case.

As for the plaintiffs’ request, a party

seeking to compel another party to search the files of additional
custodians bears the burden of establishing the relevance of the
documents

it

seeks

from

those

custodians.

See

Fort

Worth

Employees’ Retirement Fund v. J.P. Morgan Chase & Co., 297 F.R.D.
99, 107 (S.D.N.Y. 2013).

LightSquared’s unsupported assertions

concerning the individuals it has identified are not enough.
See id. at 107-08 (denying requests to compel search of additional
custodians based on lack of evidence of relevance).
In connection with its request that Garmin search additional
custodians’ files, LightSquared also asks that Garmin “be compelled
to identify custodians reasonably likely to have records relevant
to the technical issues presented by LightSquared’s claims.”
Memo. at 14).

(Pl.

While I appreciate the plaintiffs’ concern that

Garmin’s identification of custodians thus far may have been
informed by its misguided view of the relevant issues in this case,
I also acknowledge that Garmin has objected to the way LightSquared
12

has framed its requests.
Inc.’s

Responses

and

(See Defendant Garmin International,
Objections

to

LightSquared’s

First

Interrogatories, attached as Exh. 27 to Douglas Decl., at 6).
Because it would be inappropriate for me to issue a vague order
requiring Garmin to “identify custodians reasonably likely to have
records

relevant

to

the

technical

issues

presented

by

LightSquared’s claims,” I order the parties to proceed as follows.
Within seven days of the date of this order, LightSquared
shall serve on Garmin interrogatories requesting the identities of
individuals with knowledge of the relevant “technical issues” and
custodians in possession of documents relevant to those issues,
stating with specificity what those technical issues are.

Garmin

will then have twenty-one days to provide its response, which must
take into account the present discussion concerning the relevant
issues in the case.6

Once Garmin responds, the parties shall

negotiate and submit to the Court within fourteen days a joint
discovery plan addressing how the parties will proceed with regard
to any discovery necessitated by the response.
D.

Requests for Production 5, 7, and 8

Next, LightSquared asks that the defendants be compelled to
produce documents responsive to three Requests for Production
(“RFP”).

(Pl. Memo. at 15-16).

6

I emphasize in this regard that Judge Berman identified the
defendants’ alleged failure to disclose the out-of-band reception
issue as a necessary element in the plaintiffs’ claim.
LightSquared Inc., 2015 WL 585655, at *15. This clearly makes the
defendants’ awareness of the out-of-band reception issue relevant.
13

1.

RFP Five

LightSquared’s RFP no. 5 (“RFP 5”) asks the defendants to
produce “[a]ll documents relating to the ability of GPS Devices to
receive signals from the LightSquared Band.” (LightSquared’s First
Set of Requests for Production of Documents to Defendant Garmin
International,

Inc.

(“Garmin

RFP”),

attached

as

Exh.

J

to

Declaration of Devin A. DeBacker dated October 16, 2015 (“DeBacker
Decl.”), at 2).7

The defendants offer four arguments in response

to LightSquared’s claim that they failed to respond to RFP 5.
(Def. Memo. at 17-19).

First, Garmin claims that the searches it

conducted failed to produce any responsive records. (Def. Memo. at
18).

Second, the defendants argue that their “knowledge of

LightSquared interference with third-party devices is irrelevant.”
(Def. Memo. at 18).

Third, the defendants restate in different

terms their argument that, because the plaintiffs cannot establish
that

they

had

knowledge

of

the

Femtocell

Negotiations,

the

defendants should not have to produce discovery material relevant
to other issues.

(Def. Memo. at 19).

The defendants fourth

argument is, as far as I can tell, yet another riff on their third
argument.
In light of the discussion thus far, I can dispose of the
defendants’ arguments in short order. Point one has been mooted by
the conclusion that Garmin’s searches to date have been deficient.
Point two is simply wrong.

Possession of documents concerning the

7

The RFPs that LightSquared served on Garmin and USGIC are
identical in most relevant respects.
14

potential for GPS devices generally to receive signals from the
LightSquared band could establish (1) that the possessor had
knowledge of the out-of-band reception issue and (2) when and how
it obtained such knowledge.
relevance requirement.

Such information satisfies Rule 26’s

See Daval Steel Products, a Division of

Francosteel Corp. v. M/V Farkedine, 951 F.2d 1357, 1367 (2d Cir.
1991) (discussing breadth of relevance concept and collecting
authority); Estee Lauder, Inc. v. Fragrance Counter, Inc., 189
F.R.D. 269, 274 (S.D.N.Y. 1999) (“It is well-settled within this
Circuit that ‘any possibility’ that the sought-after information
may be relevant . . . will satisfy Rule 26(b)(1)’s requirements.”
(quoting Daval Steel Products, 951 F.2d at 1367)); see also 8
Wright & Miller, Federal Practice and Procedure § 2008 (3d ed.)
(“‘[R]elevant’ is synonymous with ‘germane.’”).

Points three and

four have already been considered, albeit in different form, and
rejected. The defendants shall produce all documents responsive to
RFP 5.
2.

RFPs Seven and Eight

RFP no. 7 (“RFP 7”) demands “[a]ll documents relating to the
potential retrofit or redesign of GPS Devices to prevent GPS
Receiver Overload caused by LightSquared’s Network or Terrestrial
Operations

in

the

LightSquared

Band,

including

the

technical

feasibility, cost, and impact on selling price of such retrofit or
redesign.”

(Garmin

RFP

at

2).

RFP

no.

8

(“RFP

8”)

seeks

“[d]ocuments sufficient to show the number of GPS Devices You sold
that were susceptible to GPS [] Receiver Overload and the profits
15

You made from those sales.”

(Garmin RFP at 3).8

LightSquared

offers two explanations regarding the relevance of these requests.
First, LightSquared asserts that a “key issue in the case” is the
extent to which the defendants profited from, or avoided incurring
expenses due to, their alleged failure to disclose.
18).

(Pl. Memo. at

Second, LightSquared argues that “Judge Berman made clear

that potential motivations for defendants’ failure to disclose” are
relevant to the negligent misrepresentation claim.
18).

(Pl. Memo. at

The defendants state that the plaintiffs’ contentions are

wrong as a matter of law and, furthermore, that the cognizable
damages for a negligent misrepresentation claim do not include a
defendant’s profits or avoided costs.

(Def. Memo. at 20-21).

LightSquared traces the sole support for its two contentions
to Judge Berman’s indication that Rule 9(b) of the Federal Rules of
Civil

Procedure

required

LightSquared

to

d]efendant[s] obtained through the fraud.”

allege

“what

[the

(Pl. Memo. at 18

(quoting LightSquared Inc., 2015 WL 585655, at *17)).9

Having

satisfied Rule 9(b) -- the purpose of which is to give a defendant
fair notice of the factual ground upon which the plaintiff’s claim
is based and to protect potential defendants from “improvident

8

LightSquared requested from USGIC “[a]ll documents relating
to the sale of GPS Devices that were or are potentially susceptible
to GPS Receiver Overload.” (LightSquared’s First Set of Requests
for Production of Documents to Defendant United States GPS Industry
Council, attached as Exh. L to DeBacker Decl., at 3)
9

Having scoured the opinion, I have no clue where “Judge
Berman made clear that potential motivations for defendants’
failure to disclose are relevant considerations for LightSquared’s
claim.”
16

charges of wrongdoing,” see Ross v. Bolton, 904 F.2d 819, 823 (2d
Cir. 1990) -- the proper inquiry for purposes of discovery is
whether the requested documents are relevant to LightSquared’s
negligent misrepresentation claim.

LightSquared conspicuously

does not argue that its claim of negligent misrepresentation
requires a showing that the defendants intended to induce reliance
by failing to disclose the out-of-band reception issue. (Pl. Memo.
at 18-19; Pl. Reply at 8); cf. LightSquared Inc., 2015 WL 585655,
at *14 (listing elements of negligent misrepresentation claim).
Neither does LightSquared dispute the defendants’ argument that
profit and avoided costs are not cognizable measures of damage for
a negligent misrepresentation claim.
Reply at 8).

(Def. Memo. at 20-21; Pl.

More than Judge Berman’s brief reference to “what

[the d]efendant[s] obtained through the fraud,” LightSquared Inc.,
2015 WL 585655, at *14, is necessary to render relevant the
documents

LightSquared

requests

pursuant

to

RFPs

7

and

8.

Accordingly, this portion of the plaintiffs’ motion is denied.
E.

Request to Apply Additional Search Terms

LightSquared’s final demand, although framed as a request to
compel the defendants to apply the plaintiffs’ proposed search
protocol,

is

mostly

a

dispute

about

the

parties’

divergent

understandings of where things stand with regard to discovery in
this case.

(Pl. Memo. at 19-20).

While the plaintiffs fleetingly

draw the Court’s attention to their proposed search protocol, they
make no argument concerning the merits of, or justifications for,
the additional search terms. (Pl. Memo. at 19-20). LightSquared’s
17

view is that (1) the search terms used in discovery thus far were
designed to address “Phase I” discovery (i.e., discovery concerning
the relationship between USGIC and the other defendants) and (2)
new search terms are needed to complete “Phase II” discovery (i.e.,
discovery concerning all other issues in the case).
19).

(Pl. Memo. at

The defendants, LightSquared contends, have refused to

negotiate an appropriate search protocol for Phase II discovery.
(Pl. Memo. at 20).
According to the defendants, LightSquared’s demand amounts to
a request for a “do-over” of Phase II discovery.
22).

(Def. Memo. at

In their view, (1) the search protocol they have applied was

not limited to Phase I discovery, (2) LightSquared understood and
agreed that the protocol would govern Phase II discovery, and (3)
LightSquared has failed to identify any “newly discovered facts”
that would justify revising the search protocol.

(Def. Memo. at

21-23).
Based on the present record, I am hesitant to adjudicate any
dispute

the

parties

have

proposed search protocol.

about

the

merits

of

LightSquared’s

See Assured Guaranty Municipal Corp.,

2012 WL 5927379, at *4 (cautioning against adjudicating complex
search term disputes in the absence of expert affidavits); see also
The

Sedona

Principles

(Second

Edition):

Best

Practices

Recommendations & Principles for Addressing Electronic Document
Production, Principle 6 (“Responding parties are best situated to
evaluate

the

procedures,

methodologies,

and

technologies

appropriate for preserving and producing their own electronically
18

stored information.”) (available at www.TheSedona Conference.org).
Neither party has provided a sufficient basis for me to determine
whether

the

proposed

search

protocol

would

be

efficacious.

Accordingly, I deny the plaintiffs’ motion to compel the defendants
to use the proposed search terms.
However,

because

this

order

requires

the

production

of

additional discovery material, I strongly encourage the defendants
to take the forgoing discussion into consideration in searching for
responsive

documents.

“conduct[ing]

a

The

diligent

defendants’

search,

which

are

responsible

involves

reasonably comprehensive search strategy.”
Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006).

for

developing

a

Treppel v. Biovail
If the defendants

unilaterally develop and implement a search protocol, rather than
negotiate a stipulated search protocol with the plaintiffs, they
run

the

risk

that

I

will

later

deem

their

search

strategy

insufficient and require them to conduct additional searches.
Conclusion
For the reasons set forth above, the plaintiffs’ motion to
compel (Docket No. 127) is granted in part and denied in part.

The

defendants Garmin and USGIC shall search for and produce documents
from April 1, 2001, to February 14, 2012, related to (1)

the out-

of-band reception issue and (2) LightSquared’s planned terrestrial
operations.
RFP 5.
the

This production shall include documents responsive to

Furthermore, the plaintiffs shall have seven (7) days from

date

of

this

order

to

serve

on

Garmin

interrogatories

requesting the identities of individuals with knowledge of relevant
19

technical issues and custodians in possession of documents relevant
to those

issues,

issues are.

stating with specificity what

those technical

Garmin will then have twenty-one (21) days to provide

its response, which must take into account the forgoing discussion
concerning the relevant issues in the case.

The parties shall then

submit within fourteen (14) days a joint discovery plan addressing
a

plan

for

response
motion

is

to

completing
the

any

plaintiffs'

denied with

discovery

necessitated

interrogatories.

respect

to

(1)

their

by

The
request

Garmin' s

plaintiffs'
to

compel

searches of the files of the individuals named in their motion,

(2)

their request to compel production of documents responsive to RFPs
7 and 8, and (3) their request to compel the defendants to use the
plaintiffs' proposed search terms.
SO ORDERED.

e_. ~CA.M._uJ lL
C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
December 10, 2015

Copies transmitted this date to:
Eugene F. Assaf, Esq.
Devin A. Debacker, Esq.
K. Winn Allen, Esq.
Nathaniel D. Buchheit, Esq.
Rebecca Taibleson, Esq.
Zachary A. Avallone, Esq.
Kirkland & Ellis LLP
655 15th St., NW, Suite 1200
Washington, D.C. 20005

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Eric F. Leon, Esq.
Kirkland & Ellis LLP
601 Lexington Ave.
New York, NY 10022-4611
Alyssa T. Saunders, Esq.
Michael D. Hays, Esq.
Cooley LLP
1299 Pennsylvania Ave., NW, Suite 700
Washington, D.C. 20004
Ian Samuel, Esq.
P. Bart Green, Esq.
Philip L. Douglas, Esq.
Eric P. Stephens, Esq.
Jones Day
222 E. 4lst St.
New York, NY 10017
William A. Isaacson, Esq.
Jonathan M. Shaw, Esq.
Abby L. Dennis, Esq.
Boies, Schiller & Flexner LLP
5301 Wisconsin Ave., NW
Suite 800
Washington, D.C. 20015
John T. Nicolau, Esq.
Boies, Schiller & Flexner LLP
575 Lexington Ave.
New York, NY 10022
Steven R. Schindler, Esq.
Karen M. Steel, Esq.
Schindler Cohen & Hochman
100 Wall St.
New York, NY 10005

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