True Freight Logistics LLC v. Global Tranz Enterprises Inc.

          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 ...