United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
These consolidated cases involve claims by Sprint Communications Company, L.P. that defendants are infringing twelve patents related to broadband and packet-based telephony products. Defendants have filed a motion to compel the production of documents and to set a scheduling order governing such production (ECF doc. 178). Because Sprint has an obligation to adequately search for and produce documents responsive to defendants' discovery requests, the motion is granted in large part.
This is not the first time that Sprint's delay in producing documents has been brought before the court. As discussed in the court's December 19, 2013 order,  Sprint has in its possession two broad categories of documents relevant to these consolidated actions: (1) documents produced by Sprint in five earlier lawsuits against different defendants, involving six of the patents-in-suit, and (2) documents related to six newly asserted patents-in-suit, particularly documents related to technology and affirmative defenses unique to the instant cases. During the scheduling conference held on April 11, 2013, Sprint stated that it was prepared to quickly produce documents from its prior litigations. With respect to documents unique to these cases, defendants served common requests for production of documents on May 10, 2013, and individual defendants served document requests in April, May, and June 2013.
On November 7, 2013, defendants filed a motion to amend discovery deadlines, arguing that Sprint's document production had been "woefully deficient." Defendants asserted that, as to documents produced in prior litigations, metadata problems existed. Defendants also asserted-and Sprint acknowledged-that Sprint had not yet produced any documents specific to the newly asserted patents-in-suit. In the court's December 19, 2013 amended scheduling order, the court granted defendants' motion to amend and extended deadlines in the original scheduling order by three months. The court noted that it appeared that the metadata problems with prior litigation documents had been resolved (after the filing of the motion to amend), and that the parties were continuing "to meet and confer regarding a process to facilitate the completion" of discovery specific to the newly asserted patents-in-suit.
In the instant motion to compel, defendants state that not much has happened in the way of Sprint's document production since the issuance of the amended scheduling order. Defendants contend that metadata problems continue to exist as to documents produced in prior litigations, and that Sprint-with one exception-has refused to collect and produce documents from custodians defendants have identified as likely to possess material, non-duplicative documents. Defendants state that Sprint is not withholding documents from these custodians based on any objections or privilege assertions. The court therefore reads defendants' motion as seeking an order compelling Sprint to respond to all of defendants' document requests, rather than to overrule objections and compel production as to particular requests.
Sprint responds that as to documents produced in prior litigations, its document production is now complete-that it has no more information to provide. As to discovery unique to the six newly asserted patents-in-suit, Sprint asserts that the reason its document production has lagged is that defendants "refuse to agree to a reasonable discovery plan." Sprint challenges defendants' identification of specific custodians from whom defendants would like documents collected as unreasonable, and instead proposes its own, much more limited, discovery protocol.
II. Production of Documents Unique to the Six Newly Asserted Patents
The parties have vastly different ideas of Sprint's obligations in responding to defendants' document requests, particularly with respect to the collection and production of responsive documents unique to the newly asserted patents-in-suit. The parties disagree both about the number of custodians to be searched and about the use and applicability of search terms.
Sprint proposed a discovery plan under which it would collect documents from six so-called "common custodians." Sprint states that these common custodians are "individuals directly involved in Sprint's efforts to provide its patented technologies to potential cable partners" such that they are "likely to have relevant, non-cumulative documents relating to common aspects of Defendants' defenses." Sprint's proposal also called for Sprint to identify two additional custodians for each of the three defendants. The defendant-specific custodians would be "lower-level personnel tasked with handling day-to-day account servicing" specific to each defendant. As of April 1, 2014 (the date of defendants' reply brief), Sprint had produced documents from the six common custodians and from one defendant-specific custodian.
Defendants, on the other hand, have identified sixty-three custodians whom defendants believe could possess information relevant to defendants' affirmative defenses. Defendants state that they made the identifications "in an effort to get the discovery they need, " but argue that Sprint has an obligation under the Agreed Order Establishing Protocol for ESI and Paper Documents ("Agreed Order") to "identify the individuals who have or previously had control of a network, computer or other specific electronic files within or upon which Potentially Discoverable ESI may be or may have been maintained." Defendants also argue that under the Agreed Order, Sprint may not rely exclusively on the use of electronic search terms (with the absence of human review) to identify responsive documents. Rather, according to defendants, Sprint must identify responsive documents "by more conventional and thorough means if those documents are stored in a format which permit [sic] it." Finally, defendants assert that, even for the types of ESI for which reliance on search terms is appropriate, Sprint has refused to employ previously agreed-upon search terms.
Sprint argues that defendants' proposal is "unreasonable" because "Defendants demand a broad range of irrelevant documents from scores of custodians having little or no unique involvement in this case." Sprint asserts that Fed.R.Civ.P. 26(b)(2) supports limiting discovery to the protocol Sprint proposed because defendants' proposal would be unduly burdensome.
Before addressing the merits of the opposing discovery proposals, the court must resolve two red-herring issues raised by the parties: (1) Sprint's argument that defendants' suggested discovery protocol is "facially overbroad, " and ...