Judge: Kenneth J. Medel, Case: 37-2020-00016638-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2020-00016638-CU-PO-CTL GOLDSTEIN VS EARNEST [EFILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/17/2023

PLAINTIFFS' MOTION FOR ENTRY OF ORDER REGARDING PRODUCTION OF DOCUMENTS IN DISCOVERY OR, IN THE ALTERNATIVE, TO COMPEL FURTHER RESPONSES TO INTERROGATORIES IS GRANTED, IN PART, AND DENIED IN PART.

Plaintiffs are not asking this Court to order the production of additional categories of responsive documents in response to any of the many requests Plaintiffs have propounded. Rather, Plaintiffs are asking this Court to preemptively order Smith & Wesson to provide Plaintiffs with detailed information regarding the process by which Smith & Wesson has responded and will respond to Plaintiffs' discovery.

The primary authority on which Plaintiffs rely in arguing Smith & Wesson is obligated to disclose its ESI process is a model ESI order from the U.S. District Court for the Northern District of California. (Mot. at 5-6.) No California law is discussed in the motion, though plaintiffs rely on some federal rulings, including unpublished cases.

A model order from a federal district court cannot bind a state court litigant. The model ESI order they cite is usually not entered unless agreed to by the parties-it is, after all, a model 'stipulated' order. (See generally Bangle Decl., Ex. K.) Based on Opposition evidence, the Northern District's webpage expressly states that the model ESI order's 'use is voluntary.' United States District Court for the Northern District of California, E-Discovery (ESI) Guidelines, https://www.cand.uscourts.gov/forms/e[1]discovery-esi-guidelines/ (last accessed November 30, 2023).

The federal authorities cited by plaintiff interpret the model order – an agreement stipulated to by the parties.

Generally, an ESI protocol is a document negotiated between the parties, not a set of requirements imposed on one party. An ESI protocol is a technical document setting forth the form and format of electronic document productions, not an order governing other and broader aspects of discovery.

Ordinarily, the law does not 'require[] a requesting party to identify custodians or search terms or for a producing party to accede to demands that particular custodians' files be searched or that particular search terms be used.' Hastings v. Ford Motor Co., No. 19- CV-2217-BAS-MDD, 2021 WL 1238870, at *2 (S.D. Cal. Apr. 2, 2021). Rather, '[r]esponding parties are in the best situation to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.' Sedona Principles, Principle 6; see also In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17-MD-2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018) ('absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information and to search the files of those individuals.') That being said, the Court recognizes the importance of the issue for proper disclosure. There is a legitimate question as to how S&W has sampled its search terms to prevent either over or under inclusion of documents in its eventual production. As cited by plaintiffs, courts have recognized the Calendar No.: Event ID:  TENTATIVE RULINGS

3047116  13 CASE NUMBER: CASE TITLE:  GOLDSTEIN VS EARNEST [EFILE]  37-2020-00016638-CU-PO-CTL importance of sampling to prevent search terms from being either over or under- inclusive. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 257 (D. Md. 2008) ('The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents . . .

in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive.'); In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 660 n.6 662 (M.D. Fla. 2007) ('while key word searching is a recognized method to winnow relevant documents from large repositories . . . [c]ommon sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness.'). Designing search terms to be used to produce emails or other electronically stored information requires 'careful thought, quality control, testing, and cooperation with opposing counsel.' William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009) Even Smith & Wesson, to its credit, implicitly seems to appreciate the issue and describes meet-and-confer efforts relating to ESI disclosures in this case. Smith & Wesson argues that it made efforts with plaintiff to establish a protocol for such discovery but plaintiff is to blame for the impasse.

Absent agreement, it seems that a lot of this 'discovery on discovery' can be the subject of interrogatory requests. Plaintiff has served Special Interrogatories. Plaintiffs alternatively move to compel responses to Further Responses to Special Interrogatories, Set Two. A Separate Statement is provided – each request seeks precisely the information as to how the ESI responses were generated.

The Opposition to this later request rests largely on the failure to meet and confer. S&W argue that 'discovery on discovery' is generally not permissible.

A motion to compel further responses to interrogatories is improper if filed before the moving party has made 'a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.' Cal. Civ. Proc. Code § 2016.040 (requiring a declaration stating facts showing a reasonable and good faith attempt at informal resolution); Cal Civ. Proc. Code § 2030.300(b)(1). 'The level of effort at informal resolution which satisfies the 'reasonable and good faith attempt' standard depends upon the circumstances[,]' including whether additional efforts to meet and confer appear 'likely to bear fruit[.]' Obregon v. Superior Ct., 67 Cal. App. 4th 424, 431-32 (1998). In no case can a motion to compel discovery be filed when there has been no effort by the moving party to meet and confer. Mr. Bangle's declaration states that he 'met and conferred, in good faith, with counsel for S&W concerning S&W's responses to Plaintiffs' Special Interrogatories, Set Two' and is 'informed and believe[s] that the parties have reached an impasse.' (Bangle Decl., ¶ 13.) S&W argues that the day before Plaintiffs' motion was filed, while on a telephone conference that was set to discuss a different lawsuit, Mr. Bangle asked in passing whether the parties could 'work out' Smith & Wesson's objections to the interrogatories at issue. (Vogts Decl., ¶ 22.) Counsel for Smith & Wesson informed Mr. Bangle that he was not prepared to discuss the objections (as Mr. Bangle had given no indication that he wished to discuss them on this call), and informed Mr. Bangle counsel in charge of handling ESI discovery for Smith & Wesson would need to be involved in the discussion. (Id.) Given the record, there was not a sufficient meet and confer on this issue in order for the Court to compel further responses.

At this juncture, the Court does not issue an order as requested by the plaintiffs. However, the Court orders the parties to meet an confer and, consistent with the above analysis, orders that the parties come to an agreement on setting forth a protocol. Should the parties no agree on the substance, the parties can seek an IDC with this Court.

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