When a party requests a motion to compel but does not provide enough evidence to make a proper showing, a court has the power to use its own discretion in rendering discovery decisions.

Just How Broad are a Court’s Discovery Powers?

The court in this motion to compel request did not focus on the facts of this particular case but rather focused on the four individual discovery requests at issue.  This case is about a class action lawsuit against the popular traveling company, Expedia, regarding its baggage fee disclosures.  Plaintiffs, a class of disgruntled customers, provided Defendant with the following four discovery requests:

  1. “Policies or Procedures Concerning Your disclosure of baggage fees.”
  2. Copies of all Expedia customer complaints, comments, or criticisms concerning Expedia’s baggage fee disclosures.”
  3. “Documents showing any errors in baggage fee disclosures that Expedia has identified.”
  4. “Identify all other airline baggage fee disclosures that you have determined incorrectly stated the amount of the baggage fee or that Expedia had “no information” for such fee when it in fact did.”—This last request was within Plaintiff’s second set of interrogatories.

Plaintiffs asserted that during discovery: (1) the Defendant limited its document search to its U.S. points of sale only; (2) the Defendant redacted personal customer information from its customer complaints provided via request number 2 listed above; and (3) the Defendant limited its ESI document searches to particular types of luggage fairs.

First the court considered the fact that Expedia limited its document production to U.S. point of sales only.  Expedia, in addition to its famous website, had about thirty points of sale outside of the United States.  For the four areas listed above in which Plaintiffs requested document production, Expedia provided applicable documents for its U.S. points of sale only. Subsequently, Plaintiffs wished to expand these discovery requests to all sales, even those outside of the United States.  The court denied any such request because the class in this case was limited to American Expedia customers only, and Plaintiffs have not met their burden in describing why such information would be useful.  Although Plaintiffs asserted that baggage fee disclosures in other countries are different, they did not show how such disclosures are more accurate.

Since the court rejecting Plaintiffs’ first attempt at obtaining more discovery documents, Plaintiffs subsequently requested personal information about customers, such as names, addresses, and traveling itineraries, for those documents already provided by Expedia.  Expedia redacted such personal information and refuses to now provide it.  The court once again steps into Expedia’s side of the ring. 

The Court noted that it must engage in a balancing test and balances the non-party customers’ privacy rights and the Plaintiffs’ need for this particular information.  Just like with the Plaintiffs’ first request for more discovery information, the second request also was not substantially backed with enough evidence as to why the information is pertinent; in fact, the Plaintiffs did not provide any reason why such personal information is relevant to their claims.

Hopefully for Plaintiffs, the third time’s the charm.  The third request for more discovery information arises from the fact that Expedia used particular search terms for the four requests listed earlier in this blog post.  Expedia used a prior search term to compose documents for these four requests that was agreed upon by the parties for another document production request not at issue in this case.  The court recognized that it is the parties’ responsibilities to agree on search terms for ESI during the meet and confer.  To the court’s knowledge, the parties have not agreed upon universal search terms for all discovery requests. 

The court found that Expedia in this case acted reasonably by using a search term agreed upon for another document request to the requests at issue.  Without the Plaintiffs providing evidence to the court demonstrating that they agreed to another search term that differed, the court ruled in favor of Expedia and its reasonable use of another agreed upon search term to these requests at issue.   If Plaintiffs had provided more evidence, the Court in this case may have turned out differently. However, without such evidence, the court had no choice but to rule in Expedia’s favor.

Laura Cicirelli, a Seton Hall University School of Law student (Class of 2016), has served as an Associate Editor and is currently serving as the Editor-in-Chief of the Seton Hall Law Review. Following graduation, Laura will be joining the firm of Debevoise & Plimpton as a corporate associate in its New York City office.  Prior to law school, Laura attended the University of Scranton (Class of 2013) where she majored in marketing and double minored in operation and information management and philosophy.    

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