United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Non-Parties Eric and James
Boggess and Wm. B. Tabler Co., Inc.'s Motion for
Clarification of the Court's May 25, 2017 Order [DE 536],
filed by non-party records deponents Eric Boggess, James
Boggess, and Wm. B. Tabler Co., Inc. (collectively
“Deponents”) on September 19, 2017. Plaintiff
Apex Colors, Inc. (“Apex”) filed a response on
September 28, 2017, Deponents filed a reply on October 3,
2017, Apex filed a sur-reply on October 13, 2017, and
Deponents filed a sur-response on October 18, 2017.
25, 2017, the Court issued an Opinion and Order on
Plaintiff's Motion to Enforce Third Party Subpoenas and
on Deponents' Motion for a Protective Order. Therein, the
Court enforced representations and concessions that had
already been made by the parties, limited other requests by
date, custodian, search terms and/or subject matter, and
sustained the objection to Request No. 29. See (ECF
512, pp. 16-22). As to the search of emails, the Court wrote,
in relevant part:
Those search terms can be combined and the searches modified
through the cooperation of counsel for Apex and for Deponents
in conjunction with One Source Discovery to ensure that a
reasonable number of emails are identified for the
limited time periods that would not place an undue burden
of review on Eric Boggess. The email retrieval process
should be dynamic, with the searches being
adjusted before a final production. Late in the
negotiations, Deponents requested a list of search terms from
Apex; it is disingenuous to now refuse any search of the
emails. In addition, emails sent to or from Bykowski or
other employees of Finos on behalf of Finos are not
confidential because Apex was a fifty percent owner of
Finos. Therefore, Eric Boggess should be able to set up
straightforward protocols to assist him in screening
responsive emails that may contain proprietary information of
Tabler or NeoNos Research, if any.
512, p. 25) (emphasis added). The Court ordered counsel for
Apex and counsel for Deponents to work together with One
Source Discovery to respond to the subpoena requests for
the issue of burden on Eric Boggess, a non party, the Court
wrote, “Thus, the remaining question is one of burden
on Eric Boggess, a non party, in terms of the time he will
have to spend reviewing the information gathered by One
Source Discovery before it is turned over to Apex. ‘In
the context of third party discovery, courts should be
especially careful in protecting the parties from excessive
or oppressive discovery.'” (ECF 512, p. 26)
(quoting Moore v. PlasmaCare, Inc., No.
1:11-CV-1090, 2012 WL 602623, at *2 (S.D. Ind. Feb. 23,
2012)). The Court ordered that “Deponents shall have
three weeks to review the information produced by One Source
Discovery.” Id. at p. 29.
series of negotiations, counsel for Apex, counsel for
Deponents, and One Source Discovery (“One
Source”) executed a Dual Engagement Letter for
Electronic Discovery Services dated June 29, 2017, governing
the services to be performed by One Source as outlined in the
Court's May 25, 2017 Opinion and Order, with Appendix A
providing the specific actions to be taken by One Source. The
Engagement Letter provides that “One Source shall
execute an initial keyword search with date filters agreed
upon by Plaintiff and Deponents against the collected
mailboxes utilizing keywords and other filtering mechanisms
agreed upon by Plaintiff and Deponents.” (ECF 536, Ex.
1, App'x A, ¶ 6).
the execution of the Dual Engagement Letter, One Source
collected emails dated on or prior to March 31, 2013, for
eight email custodians on a Tabler server. However, Apex and
Deponents were then unable to agree on initial search terms.
August 1, 2017, Deponents proposed an initial set of search
terms to Apex. (ECF 536-4, p. 7-8). On August 2, 2017, Apex
responded, disagreeing with the new set of search terms,
asserting its desire to have the original January 2017 search
terms run and raising concerns about delay. Id. at
6-7. On August 2, 2017, Deponents responded, noting that the
dual engagement letter provided for the parties to agree on
search terms for an initial search. Id. at 6.
Nevertheless, to speed up the process, Deponents agreed to
allow One Source to generate a “hit list” showing
the number of results for each custodian and term in
Apex's initial proposed terms but maintained their
position that the initial list of search terms would need to
be significantly “modified, narrowed, and/or combined
with additional limiting terms before running any final
search terms.” Id. at p. 6.
August 3, 2017, One Source confirmed that it would run the
search of Apex's original search terms and provide a
“hit list.” Id. at p. 5. One Source
provided the “hit list” on August 4, 2017, which
identified approximately 78, 000 email messages, with a total
of 97, 639 responsive items when attachments were included.
(ECF 536-3, p. 7). In response to Deponents' inquiry
about who should propose the next set of search terms, on
August 6, 2017, Apex indicated that it would propose the next
set of search terms to attempt to limit the production.
Id. at 7.
August 8, 2017, Deponents proposed search term modifications,
which Apex rejected because the proposal was not a narrowing
of Apex's search terms but rather an entirely new set of
terms. The August 8, 2017 searches proposed by Deponents were
based on the terms “bykowski, ” “chemworld,
” and “pigment, ” each in combination with
other terms. See (ECF 536-4). This list was too
narrow for Apex.
August 9 and 11, 2017, Apex asked Deponents to identify the
total number of emails they consider reasonable for Eric
Boggess to review in three weeks. Id. at 5. On
August 11, 2017, Deponents responded that the total number of
documents depends on whether One Source would supply Eric
Boggess with a review platform on which to review the emails.
Id. at 4. Without a review platform, Deponents
proposed a few hundred emails as a reasonable number. With a
review platform, Deponents proposed an approximate review
rate of sixty emails per hour. Id. at 4. Deponents
noted that Eric Boggess had not previously conducted
electronic document review, and, thus, his rate may be
slower. Id. Deponents proposed that Eric Boggess
spend no more than fifteen hours reviewing the emails in the
three-week period, as that time would be in addition to his
time working as President and primary salesperson of Tabler,
a small business with six employees. Id. at 5. Thus,
Deponents proposed that Eric Boggess could review
approximately 900 documents in 15 hours at a rate of 60
documents an hour. Id. On August 12, 2017, Apex
responded that the production of 900 emails is not
reasonable, that Apex is the party in need of the
information, and commented that this is an evolving process.
Id. at 3-4. Apex also provided One Source with a
color coded search term list to further reduce the search
results. See (ECF 543-2).
August 15, 2017, Deponents asked Apex how many documents Apex
feels is reasonable for Eric Boggess to review in light of
its rejection of Deponents' proposal of 900 documents.
(ECF 536-3, p. 2). Deponents agreed to allow One Source to
run a subsequent “hit list” based on Apex's
newest proposed search term list, but noted that they did not
agree that the terms and limitations are appropriate or
reasonable. Id. at 3. For example, Deponents object
to the search term “pigment” as a stand alone
search term. Id. Deponents also asked for
clarification as to whether Apex would allow One Source to
run a hit list for the term combinations Deponents had
August 16, 2017, One Source provided another “hit
list” for Apex's proposed modified terms, yielding
more than 27, 000 email families. (ECF 536-6).
August 23, 2017, counsel for Apex noted that her legal
assistant could review, per day, 1000 previously unseen
emails on a foreign topic (a rate of 125 per hour) and
suggested that Eric Boggess should be able to review his own
companies' emails rather quickly. Id. at p. 2.
Apex noted that the emails had been reduced to 29, 000, which
Apex believed to be reasonable. Id. However, Apex
agreed to cut additional terms and took the position that the
number of emails yielded by the removal of those terms should
be the final production of emails to be reviewed by Eric
Boggess. Id. Apex took the position that, because
privileged documents should have already been removed by the
exclusion of certain attorney names, any documents Eric
Boggess identifies to not be produced should be made
available to counsel for Apex for in camera review.
Id. Apex reasoned that Eric Boggess is not in a
position to determine what information is relevant to this
August 28, 2017, One Source produced search results based on
Apex's newest proposal, which reduced the emails to 23,
400. (ECF 536-5, p. 3); see also (ECF 536-7) (One
Source 8/28/2017 “Hit List”). On September 7,
2017, One Source clarified that the 23, 400 emails
nevertheless represented a total ...