This title is a paraphrase of the basic question at the heart of an Order dated May 9, 2013 in Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013), where Apple had a dispute with third-party Google. Apple subpoenaed Google to provide electronic discovery under Fed. R. Civ. P. 45. (Non-parties may be subpoenaed to produce documents or ESI in their possession or control.)
Google claimed it complied with the subpoena, and in the dispute before the Court, Apple did not challenge the adequacy of the production. However, Apple filed a Motion to Compel to force Google to disclose the search terms it used to produce the electronic data. The district court defined Apple’s request as basic: How did Google create the universe in which it produced the documents?
Google did not want to disclose the search terms or methodology behind the production. It proffered a few objections:
- The search terms and choice of custodians were privileged under work-product immunity. (The court rejected this and noted case law suggested the opposite.)
- That producing the search terms would be unduly burdensome. (The court rejected this and noted in a footnote the irony of Google, pioneer of search terms, attempting this argument.)
- That Google was willing to consider Apple’s suggested search terms, but refused to explain its own efforts, and believed its status as only a third-party exempted it from the obligations of plaintiffs and defendants.
The Court summarized the last argument: Is it extraordinary for a third-party to be transparent about its discovery methods? The Court concluded no, and found authority for its position in the case DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D.Ill. 2010). The Court found the facts of DeGeer to be substantially similar to the case at hand and held that “Third-party status does not confer a right to obfuscation or obstinacy.”
More on this opinion, the DeGeer case logic and calls for cooperation in our next blog!