SM Kids, LLC v. Google LLC et al

Filing 152

ORDER granting in part and denying in part 138 Letter Motion for Conference; granting in part and denying in part 139 Letter Motion for Local Rule 37.2 Conference. This Order addresses the discovery issues raised in Plaintiff's Letter M otion, dated November 27, 2020 (ECF No. 138) and Defendants' Letter Motion, dated November 27, 2020 (ECF No. 139). These motions are GRANTED IN PART and DENIED IN PART. It is hereby ORDERED, as follows: 1. Plaintiff's request to compel De fendants to produce all deposition transcripts from the Silvers v. Google litigation (see ECF No. 148 at 3) is denied, with a proviso, as further set forth in this Order. 2. Plaintiff's request to compel Defendants to produce all responsive and non-privileged electronically stored information, including emails, from January 1, 2008 through March 23, 2018 responsive to RFP Nos. 1, 3, 7, 11, 14, 16, 25, 26, and 30 (see ECF No. 148 at 3) is denied without prejudice. 3. With respect to the pa rties' dispute regarding search terms as to two custodians (see ECF No. 151 at 2), Plaintiff shall cooperate with Defendants in seeking to reduce the hit counts to a more manageable number, using all reasonable and feasible tools at Plaintiff� 39;s disposal, as further set forth. 4. With respect to Defendants' request for an order directing Plaintiff to produce documents from the nine third parties by a date certain (see ECF No. 151 at 1), the Court hereby Orders that Plaintiff shall commence a rolling production of documents from such third parties no later than December 23, 2020. In addition, no later than December 31, 2020, Plaintiff shall file a letter with the Court as to the status of its production. The Court expects a lacrity and diligence from both sides in the discovery process. 5. With respect to Defendants' request for an extension of deadlines (see ECF No. 151 at 1), either party may make an application for extension of any interim discovery deadline as and when the need arises for good cause shown. 6. Except as set forth herein, the relief sought in ECF Nos. 138 and 139 is denied. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 12/9/2020) (mml)

Case 1:18-cv-02637-LGS-SDA Document 152 Filed 12/09/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
12/09/2020

SM Kids, LLC, as successor-in-interest to
Stelor Productions, LLC,
Plaintiff,

1:18-cv-02637 (LGS) (SDA)
ORDER

-againstGoogle LLC et al.,
Defendants.
STEWART D. AARON, United States Magistrate Judge:

This Order addresses the discovery issues raised in Plaintiff’s Letter Motion,
dated November 27, 2020 (ECF No. 138) and Defendants’ Letter Motion, dated November 27,
2020 (ECF No. 139). These motions are GRANTED IN PART and DENIED IN PART. It is hereby
ORDERED, as follows:
1. Plaintiff’s request to compel Defendants to produce all deposition transcripts from
the Silvers v. Google litigation (see ECF No. 148 at 3) is denied, with a proviso. Per my
Order dated October 24, 2020 (ECF No. 128), as to which Plaintiff filed no timely
objections, Defendants need not produce any transcripts for depositions taken prior
to January 1, 2008; provided, however, that transcripts of depositions in the Silvers
litigation of any individuals previously identified in initial disclosures or interrogatory
responses served in this case, or to whom deposition notices or subpoenas previously
have been served in this case, shall be produced within seven days of the date of this
Order. In addition, under the doctrine of completeness, any transcript of deposition

Case 1:18-cv-02637-LGS-SDA Document 152 Filed 12/09/20 Page 2 of 3

of Steven Esrig in the Silvers litigation that has not previously been produced shall be
produced within seven days of the date of this Order.
2. Plaintiff’s request to compel Defendants to produce all responsive and non-privileged
electronically stored information, including emails, from January 1, 2008 through
March 23, 2018 responsive to RFP Nos. 1, 3, 7, 11, 14, 16, 25, 26, and 30 (see ECF No.
148 at 3) is denied without prejudice. Based upon the representations made by
Defendants’ counsel in his letter dated December 2, 2020 (ECF No. 144), as well as
during the telephone conference held on December 3, 2020 (see ECF No. 146),
Defendants claim to have fulfilled their document production obligations. 1 However,
given the relative paucity of Defendants’ document production, and for the sake of
transparency, counsel for Defendants shall disclose to Plaintiff’s counsel during a
meet and confer session details of Defendants’ document collection and review
process, including without limitation the sources searched by Defendants and
relevant hit counts.
3. With respect to the parties’ dispute regarding search terms as to two custodians (see
ECF No. 151 at 2), Plaintiff shall cooperate with Defendants in seeking to reduce the
hit counts to a more manageable number, using all reasonable and feasible tools at
Plaintiff’s disposal. If the parties are unable to resolve this dispute, they may seek

For the avoidance of doubt, the Court notes that with respect to documents “concerning the Settlement
Agreement[,]” the Court expects that Google produced “not only documents from the negotiation, but
also documents about what Google did with the Settlement Agreement after signing it, [and] any efforts
made to comply[.]” (Pl.’s Reply, ECF No. 148, at 2.) The Court does not expect, however, Google to have
produced all documents concerning the subject of the Settlement Agreement, as Plaintiff’s interpretation
would require, as the Court finds that such production would not be proportional to the needs of the case.

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Case 1:18-cv-02637-LGS-SDA Document 152 Filed 12/09/20 Page 3 of 3

court intervention, but that should be a last resort. There is no reason that
sophisticated counsel acting in good faith should not be able to resolve disputes over
hit counts.
4. With respect to Defendants’ request for an order directing Plaintiff to produce
documents from the nine third parties by a date certain (see ECF No. 151 at 1), the
Court hereby Orders that Plaintiff shall commence a rolling production of documents
from such third parties no later than December 23, 2020. In addition, no later than
December 31, 2020, Plaintiff shall file a letter with the Court as to the status of its
production. The Court expects alacrity and diligence from both sides in the discovery
process.
5. With respect to Defendants’ request for an extension of deadlines (see ECF No. 151 at
1), either party may make an application for extension of any interim discovery
deadline as and when the need arises for good cause shown.
6. Except as set forth herein, the relief sought in ECF Nos. 138 and 139 is denied.
SO ORDERED.
DATED:

New York, New York
December 9, 2020
______________________________
STEWART D. AARON
United States Magistrate Judge

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