In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., Case No. 8:14CV31 (Jul. 13, 2015), the District Court for the District of Nebraska considered Plaintiff’s motion to compel Defendants to produce ESI related to complex computer licensing.
Plaintiff alleged that Defendants disclosed confidential proprietary information to a third party, including software and manuals, allowing Defendants and the third party to replicate the software. Plaintiff sought documents, files, and ESI containing its proprietary information to determine whether Defendants continued using the information after expiration of the license agreement and whether they still use it. Defendants objected to the requests as burdensome; Plaintiff devised a search protocol for Defendants to use to retrieve the information. Defendants refused and Plaintiff filed a motion to compel Defendants to comply with the protocol.
The court found that Plaintiff had established a need for the ESI. The court, however, determined that the court lacked the necessary expertise to determine a proper search protocol that would provide the ESI to Plaintiff in a cost-effective manner. Accordingly, the court ordered the parties to continue meeting and conferring to reach an agreeable search methodology for retrieving the requested information. In the event that the parties cannot agree, the Court advised that it will immediately refer the matter to a special master to oversee the production of ESI. The court also advised the parties that if they needed to retain a special master, the court would assess the costs of retention against the parties in proportion to their success (or lack thereof) on the merits of their arguments.