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Webasto Thermo & Comfort North America, Inc. v. Bestop, Inc.

United States District Court, E.D. Michigan, Southern Division

June 29, 2018

WEBASTRO THERMO & COMFORT NORTH AMERICA, INC., ET AL., Plaintiffs,
v.
BESTOP, INC., Defendant.

          PAUL D. BORMAN DISTRICT JUDGE

          OPINION AND ORDER

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE

         This is a patent case. On March 12, 2018, the Court entered a stipulated order governing the production of electronically stored information (the “ESI Order”)[Doc. #72]. Although the stated purpose of the ESI Order was “to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention, ” ESI Order, ¶ 1.1, Plaintiffs Webasto Thermo & Comfort North America, Inc. and Webasto-EDSCHA Cabrio USA, Inc. (collectively “Webasto”) have filed an Emergency Motion to Stay ESI Discovery, for a Protective Order, and for Cost-Shifting [Doc. #78], alleging that Defendant Bestop, Inc. (“BesTop”) has violated the Order by propounding overly broad search terms in its request for ESI. Plaintiffs seeks a protective order “sparing Webasto from unduly burdensome email discovery, until such time as BesTop propounds reasonable email search requests containing appropriate narrowing criteria.” Motion at 15, Pg. ID 2042. Webasto also requests an order requiring BesTop “to pay Webasto's costs associated with its email production, because of its insistence on propounding prima facie inappropriate search criteria, and refusal to work in good faith to target its search terms to specific issues in this case.” Id.[1]

         I. BACKGROUND

         Webasto manufactures an automobile roof and roof-opening mechanism in which it has a patent (“the ‘342 patent”). It claims that BesTop manufactures a roof-opening mechanism under the name “Sunrider for Hartop” that infringes the ‘342 patent. BesTop contends that its Sunrider product is based on prior art, invalidating Webasto's ‘342 patent. At issue in this motion is BesTop's discovery request for ESI from Webasto, specifically emails. Because the total emails generated and received by these companies would be voluminous, and many would encompass matters having nothing to do with this lawsuit, the stipulated ESI Order establishes a protocol for narrowing the requests, limiting production to eight individuals, and directing the parties to propound ten search terms for each individual. The ESI Order contemplates that the search terms selected will serve to narrow the search, and to exclude extraneous and irrelevant information.

         Paragraph 1.3(3) of the ESI Order provides as follows regarding email production:

“Each requesting party shall limit its email production requests to eight (8) key custodians and a total of ten search terms per custodian per side.
3) The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that significantly reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g. ‘computer' and ‘system') narrows the search and shall count as a single term. A disjunctive combination of multiple words or phrases (e.g. ‘computer' or ‘system') broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g. ‘and,' ‘but not,' ‘w/x') is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery.”

         Webasto contends that BesTop's proposed search terms are “overbroad, indiscriminate, and contrary to BesTop's obligations under the Court's ESI Order.” Despite pre-motion communication between counsel, the parties are at an impasse regarding whether BesTop has appropriately narrowed its search terms. BesTop's proposed search terms include the following:

Jeep
Swap Top
Bestop
ThrowBack
Magna
Aftermarket
Sale (including as part of the word ...

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