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Apex Colors Inc. v. Chemworld International Ltd. Inc.

United States District Court, N.D. Indiana, Hammond Division

October 19, 2017

APEX COLORS, INC., Plaintiff,



         This 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.

         On May 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.

         (ECF 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 emails.

         As to 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.

         After a 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).

         Following 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.

         On 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.

         On 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.

         On 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.

         On 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).

         On 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 proposed. Id.

         On 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).

         On 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 litigation. Id.

         On 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 ...

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