On December 21, 2017, the United States District Court for the Southern District of California issued a decision in Youngevity Int'l Corp. v. Smith, 2017 U.S. Dist. LEXIS 210386 (S.D. Cal.). Judge Jill Burkhardt ruled on the defendants' (and counter claim plaintiffs') motion to compel a proper production, and also produce a hit list of documents which are responsive to the parties' search terms.
The defendant in the case argued that the plaintiff did not correctly certify its responses under Federal Rule of Civil Procedure 26(g) because the plaintiffs' production consisted of a document dump. The court found that because the record did not show the content of the plaintiffs' responses it could not impose sanctions under this rule.
The court rejected the argument by the defendants that a production of 4.2 million pages by the plaintiffs, without the plaintiffs having conducted a document by document review, violated their discover obligations. The court determined that the defendants' own search terms were very board and accounted for the large number of responsive documents. The court rejected the position by the plaintiffs that hits in search results necessarily determine the status of documents as responsive. Judge Burkhardt's opinion states that:
". . . Search terms are an important tool parties may use to identify potentially responsive documents in cases involving substantial amounts of ESI. Search terms do not,however, replace a party's requests for production." (Id. at 33).
It concluded that the plaintiff may not, "designate all the documents as AEO without regard to whether they meet the standard for such a designation,and thus bury responsive documents among millions of produced pages." (Id. at 34). The court seized on the fact that the plaintiff not only designated only documents as 'attorneys eyes only', but also notified the defendants that their production might include privileged documents. (Ibid.)
The court also found that the designation of millions of pages as 'attorneys eyes only' without review violated the protective order. The opinion states that the plaintiffs, "cannot have a good faith belief that every document in its 4.2 million page productions should be designated as AEO if it has not reviewed any of the documents." (Id. at 36). The court ordered the plaintiffs to do either one of the following:
1. Provide its hit list to the defendants by 12/26/17; complete the meet and confer on search terms by 1/5/18; run the search terms by 1/12/18; screen the documents for responsiveness and privilege by 2/15/18, and make a production by 2/16/18.
2. Provide the previously unproduced documents without further review by 12/26/17, and pay the cost for the defendant to review the documents (700,000 in total) with technology assisted review software.