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Timothy Dufour, et al v. Be LLC

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division

December 21, 2012


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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