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Timothy Dufour, et al v. Be LLC
December 21, 2012
TIMOTHY DUFOUR, ET AL.,
PLAINTIFFS,
v.
BE LLC, ET AL., DEFENDANT.
The opinion of the court was delivered by: Laurel Beeler United States Magistrate Judge
ORDER RE 11/16/2012 JOINT
16 Plaintiffs and Monterey Financial Services have another discovery dispute about Monterey's production of electronically-stored information (ESI). See Letter, ECF No. 170. Plaintiffs
18 concerned that productions in October and November contained relevant documents that Monterey 19 did not produce previously. Id. at 3. Plaintiffs want a third party appointed to search and produce
20 discovery from Monterey's system. Id. at 5. They are concerned
about production both because 21 they assert there has been spoliation
in the case (albeit not by Monterey), and Monterey has said that 22 it
may move for summary judgment soon. Id. at 2-3, 5. That makes
Plaintiffs nervous about timing. 23 Monterey essentially says that it
is doing the best it can, it has done computer searches on a 24
computer-by-computer basis, and it has -- with Plaintiffs' input --
upped the search terms used from 7 25 to 40. Id. at 3-5. 26 The court
held a hearing on December 20, 2012. On this record, there is not a
reason to appoint 27 a third party to do the work. Monterey is
responsive to Plaintiffs' requests. If there is an interplay 28 with
deadlines in the district court, that is an understandable concern:
Monterey is concerned that
this is premature in a case that is pre-certification, and
Plaintiffs are nervous about any summary 2 judgment deadlines. Going
forward, the parties should raise those case management concerns here
3 and in the district court. As to producing information now, the
court's view is that Monterey has 4 been producing it, the case is a
2009 case, and that bridge (producing now versus post-certification) 5
seems to have been crossed already. 6 The parties discussed three more
computers that should be searched with the keywords. Those 7 belong to
Scott Little, Mark Thieu, and Pamela Carlson. The court and the
parties discussed some 8 investigative approaches to running those
searches such as fashioning time and custodian parameters 9 for email
searches at least initially. For example, one could search only for
emails among three set 10 people for November 2008 with certain
keywords (or all emails, for that matter) and use that as a 11 means
to evaluate what ought to happen next. If there are real burden
arguments, the parties will 12 confer about them. If the parties need
the court's help in resolving the disputes, they should
include
COURT 13 in any future letter the kinds of documents and emails they would expect to find and the custodians TATES that attachments that are responsive to the RFPs should be produced. The court agrees with 14 who might have them. This will help will help problem-solve ESI issues.
Another issue discussed is whether attachments to emails are responsive. Monterey suggested 16 that Plaintiffs should review emails and ask affirmatively for any attachments. Plaintiffs respond Plaintiffs. If an email is responsive, it should be produced with any attachments and vice versa. 19 Monterey agreed on the record and will of course be able to do its normal document and privilege review. 21 This disposes of ECF No. 170.
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