United States District Court, D. Arizona
ORDER
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
Defendant
Global Tranz Enterprises, Inc. (GTZ) seeks a protective order
pursuant to Fed.R.Civ.P. 26(c) regarding Plaintiff True
Freight Logistics LLC's requests for production of
electronically stored information (ESI).[1] (Doc. 58). Upon
consideration of the parties' arguments, the Court will
grant GTZ's motion in part and deny it in part.
BACKGROUND
Through
requests for production, True Freight sought “all
communications, ” with no subject matter limitation,
between 49 different GTZ email accounts for the time period
of May 2017 to February 28, 2018. (Doc. 58, Ex. A at 2; Doc.
58 Ex. A at 11-12.) After GTZ objected, True Freight narrowed
its request to 33 email accounts, provided search terms, and
expanded the date range to include June 12, 2012 to February
8, 2018. (Doc. 58 at 2; Doc. 58, Ex. B.) GTZ agreed to
collect ESI from 14 of the 33 custodians and indicated its
“preference” to limit True Freight's
requested search terms.[2] (Doc. 58 at 2; Doc. 58, Ex. C at 2.)
With respect to the remaining custodians, GTZ requested
additional information about why each custodian was likely to
be in custody of relevant information. (Doc. 58 at 2 (citing
Doc. 58, Ex. C).)
In
response, True Freight provided the title and/or a
“generalized” description of the type of work
performed by each custodian; True Freight did not explain why
each individual would likely be in custody of the requested
information. (Doc. 58, Ex. E at 1- 2 (True Freight stating
that the “description is not inclusive and not
detailed. GTZ is aware of the responsibilities and
interactions of the above individuals because they are/were
GTZ's employees.”).)
GTZ
ultimately agreed to collect data from one additional
custodian, bringing the total to 15. (Doc. 58 at
3.)[3]
GTZ's search retrieved 4.5 GB, comprised of approximately
13, 000 documents and more than a million pages for GTZ's
counsel to review for relevance and privilege. (Id.)
GTZ's counsel has spent approximately 80 hours reviewing
those documents, “is only a little more than half way
through, ” and GTZ has produced 27, 000 pages to True
Freight. (Id.)
DISCUSSION
GTZ now
seeks a protective order limiting production to the 15
custodians whose accounts GTZ has already searched. GTZ
asserts that requiring it to collect and review documents
from additional custodians is not proportionate to the needs
of the case. GTZ estimates that searching for documents from
the additional custodians will result in at least the same
amount of data gathered from the first 15 custodians and will
cost GTZ at least another $100, 000 in attorneys' fees.
(Id. at 4.) With the exception of one custodian, the
Court agrees with GTZ.
Rule
26(c) allows the Court to limit discovery upon a
determination that “the proposed discovery is outside
the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P.
26(c)(iii). Rule 26(b)(1) provides, in pertinent part:
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.
Fed. R.
Civ. P. 26(b)(1). Thus, under Rule 26(b)(1), relevancy alone
is not sufficient to obtain discovery-“discovery must
also be proportional to the needs of the case.” In
re Bard IVC Filters Prods. Litig., 317 F.R.D. 562, 564
(D. Ariz. 2016). “[T]he Advisory Committee Note makes
clear, . . ., [Rule 26(b)(1)] does not place the burden of
proving proportionality on the party seeking
discovery.” Id. (quoting Fed.R.Civ.P. 26(b)(1)
advisory committee's note to 2015 amendment)).
“Rather, ‘[t]he parties and the court have a
collective responsibility to consider the proportionality of
all discovery and consider it in resolving discovery
disputes.'” Id. (quoting Fed.R.Civ.P.
26(b)(1) advisory committee's note to 2015 amendment);
see also In re Bard IVC Filters Prods. Litig., 317
F.R.D. at 565 (considering evidence and arguments from both
sides in deciding proportionality of discovery request);
Caballero v. Bodega Latina Corp., No.
217-CV-00236-JAD-VCF, 2017 WL 3174931, at *2 (D. Nev. July
25, 2017) (“The proportionality inquiry, thus, requires
input from both sides.”). The Advisory Committee
further noted:
The parties may begin discovery without a full appreciation
of the factors that bear on proportionality. A party
requesting discovery, for example, may have little
information about the burden or expense of responding. A
party requested to provide discovery may have little
information about the importance of the discovery in
resolving the issues as understood by the requesting
party.... A party claiming undue burden or expense ordinarily
has far better information-perhaps the only information-with
respect to that part of the determination. A party claiming
that a request is important to resolve the issues should be
able to explain the ways in which the underlying information
bears on the issues as that party understands them. The
court's responsibility, using all the information
provided by the parties, is to consider these and all the
other factors in reaching a case-specific determination of
the appropriate scope of discovery.
Id.
Having
considered the parties' arguments, the Court concludes
that TFL's demand for GTZ to produce documents from all
of the additional custodians ...