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Court Chides Party Who Produces Over 4 Million Pages of Unreviewed Documents with Blanket Attorneys’ Eyes Only Designation

Posted on January 15th, 2018

Our blog explains discovery

Our blog explains discovery case law examples.In Youngevity Int’l Corp. v. Smith, No. 16-cv-00704-BTM (S.D. Cal. Dec. 21, 2017), a dispute between two multi-level nutritional supplement companies over unfair competition, the court addressed the parties’ inability to come to an agreement regarding refinement of search terms and Attorney Eyes Only (“AEO”) designation of documents.

After the first phase of discovery, Youngevity (“Plaintiff”) produced approximately 1.9 million documents, and designated them all AEO stating that “to be able to timely produce all of these documents, Youngevity has marked all documents as `Confidential—Counsel Eyes Only.’ If Defendant wished to de-designate any produced document, Plaintiff would reconsider the AEO designation.” Plaintiff’s second discovery production was 2.3 million pages of documents, all designated AEO.

Defendants objected, and requested that Plaintiffs provide a hit list to narrow the search terms, calling the present list vague and amorphous. Defendants also demanded that Plaintiffs identify a workable set of categories (narrow and well-defined) and agree to re-designate its production as “confidential,” or Defendants would move for sanctions.

In summary, Plaintiff produced more than 4 million documents in discovery, designating them all AEO, including completely irrelevant items (including an email reminder for the employees to clean the kitchen at work). Plaintiff also notified Defendant and the Court that it had failed to produce some 700,000 documents due to a technical issue with its vendor.

The Court expressed frustration at Plaintiff’s actions, which amounted to a massive four million page document dump, with a mass designation of AEO, and little to no scrutiny of the relevance of any document produced. Plaintiff admitted that it had an obligation to produce responsive documents and argued that because each document hit on a search term, the documents were responsive to Defendant’s requests. The Court disagreed, saying that Plaintiff was not being cooperative or acting in good faith: refusing to honor a negotiated agreement (to provide a hit list to narrow search terms), and producing all documents hit on without reviewing a single one prior to production or engaging in any other quality control measures. The Court stated that Plaintiff had not satisfied its discovery obligations and had further violated the Stipulated Protective Order in the case. The Court further accused the Plaintiff of attempting to bury responsive documents among the millions of produced pages.

Because of its actions and inaction, the Court ordered Plaintiff to satisfy its discovery obligations as set forth in prior proceedings, and produce the missing 700,000 documents and pay Defendant’s incurred expenses, including its related attorneys’ fees.


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