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Defendant Ordered to Produce Archived Emails Even Though Plaintiff Failed to Produce Theirs – eDiscovery Case Law

In Finjan, Inc. v. Blue Coat Systems., 5:13-cv-03999-BLF (N.D. Cal. Oct. 17, 2014), California Magistrate Judge Paul S. Grewal granted the plaintiff’s motion ordering the defendant to produce relevant emails from its eight custodians, even though the plaintiff was unable to provide its own archival emails.

Case Background

As Judge Grewal stated “[t]o cut to the chase in this dispute over the scope and pace of Defendant Bluecoat Systems, Inc.’s document production in this patent infringement case”, the plaintiff moved to compel the defendant to produce email from eight custodians related to both technical documents and damages documents as well as damages testimony.  The defendant did not object to producing any of the technical discovery requested and raised only limited issues concerning the documents on damages, mostly objecting to producing custodial email from archival systems when the plaintiff was not able to do the same in return.

Each party agreed to identify eight custodians and ten terms per custodian for the other to search. The defendant did not dispute the relevance of either the custodians or search terms the plaintiff selected. But when the defendant learned that the plaintiff did not have former employees’ emails — except as produced in other litigations — the defendant balked at the idea that its custodians should have to turn over any email other than from active systems.

Judge’s Ruling

“Reduced to its essence, Rule 26(b)(2)(iii) requires this court to decide: have Blue Coat’s discovery responses been fair? Blue Coat’s discovery responses so far have largely been fair, but not entirely”, stated Judge Grewal.

Judge Grewal found that, with the exception of one document repository recently discovered (as acknowledged by defendant’s counsel), the defendant had completed its obligation regarding the technical document production.  Judge Grewal also ruled that the plaintiff “has identified no legitimate reason why it should be provided discovery on Blue Coat’s foreign sales or valuation on the whole”.  He also stated that the defendant “might reasonably be required to at least tell Finjan what the [third party] agreements are and the status of its efforts to secure consent.”

However, with regard to the archival email, Judge Grewal ruled as follows:

“Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan — the one specific category of documents Finjan could identify that it needed from archived email — Finjan’s request is reasonable.”

As a result, the defendant was ordered to “identify all license agreements whose production is awaiting third-party consent and the status of its efforts to secure that consent” within seven days and “produce all archival email from its eight designated custodians that mention Finjan and supplemental Interrogatories 5 and 6” within 21 days.

So, what do you think?  Should the defendant have to produce email when the plaintiff can’t do the same?  Please share any comments you might have or if you’d like to know more about a particular topic.

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