On October 4th of 2013, the Northern District of California issued a tentative ruling in a discovery dispute where the Defendant had “triangulated” its employees to identify who would possess relative discovery documents. It appears the Court had no issue with the “triangulation” technique. However, the Defendant neglected to discuss this strategy with the Plaintiff at the pre-discovery conference, which proved to be a poor choice.
The Northern District of California created a Model Stipulated Order Regarding Discovery of Electronically Stored Information, which stipulates that parties should meet and confer about methods to search Electronically Stored Information (ESI) before they respond to discovery requests. Nonetheless, the Defendant had utilized its “triangulation” method without informing the Plaintiff and produced its last group of documents shortly before the close of the discovery period. In response the Plaintiff made a second request for documents, which the Defendant objected to. To settle the dispute the Court held a telephonic hearing.
During the hearing, the Defendant revealed their triangulation method. “Rather than search every employee’s emails, defendant selected a subset of employees who would likely have received documents from, or sent them to, other employees who might have had involvement in this matter, so that the result would “most likely” capture all the relevant documents.” While the Defendant felt it satisfied the discovery request, it had not satisfied the Plaintiff; the Defendant had not even searched the e-mails of all the witnesses the Plaintiffs had deposed.
The Court did comment that the “triangulation” method “might have been a reasonable way to gather the relevant documents in this case.” On the other hand, the Court also found the Plaintiff’s request for further searching to be reasonable, especially since the Defendants produced few documents involving a particular witness the Plaintiff felt was of great importance. Given the lack of agreement between the parties about “triangulation” of documents, the Court ordered a supplement search.
Had the Defendant been more forthcoming with the Plaintiff, it may very well have avoided a costly supplemental discovery search. Judges often encourage parties to work out discovery issues and many courts have similar rules regarding meetings during discovery. It would seem wise to disclose discovery methods to an adversary early in discovery so disputes about those methods can be resolved before legal fees begin to rapidly accumulate.
George is a student at Seton Hall University School of Law (Class of 2014). He is pursuing both the Health and Intellectual Property Concentrations and is especially interested in patent law. He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively. Presently, George works as a law clerk at Stone Law in Colts Neck, NJ, where he assists in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.
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February 26, 2014 at 3:16 PM
I wonder in the future if this triangulation method will be enough, even if the parties discuss it ahead of time. In this case the results gathered from the triangulation method seemed to produce an unsatisfactory result. My guess, is that after the materials gathered from triangulation in this instance, even if the parties discuss it, it would be in the opposing parties best interest to allow the triangulation method, but also reserve the opportunity to request further results depending on the outcome.
February 26, 2014 at 10:25 PM
Would the outcome really be that different even if the Defendant had informed the Plaintiff about its triangulation method? Even if the Defendant told Plaintiff about what it intended to do, wouldn’t there still be a disagreement? Presumably Plaintiff would want the Defendant to expand its search to include all the witnesses that the Plaintiff had deposed. What if Defendant refused? It doesn’t seem the outcome would have been much different -after all, the court found that the Plaintiff’s demands were reasonable. It seems that either way, informed-Plaintiff or not, that the court would grant Plaintiff’s request.