Special Master David White recently issued a ruling granting in part and denying in part a motion to compel. Frontier Communications Corp. v. Google Inc., C.A. No. 10-545-GMS (D. Del. Dec. 6, 2013).
Special Master White first found the defendant’s identification of only two individuals who have “participated in the design, development, testing, implementation, marketing, sales, or distribution of the Accused Systems/Services” to be a deficient response to an interrogatory seeking the identification of “all persons … who have participated in ….” The Special Master agreed with the defendant that the interrogatory seeking the identifies of “all” such individuals was overbroad, but found that “the interests of both parties may be respected by requiring Google to identify those individuals who are most knowledgeable about or primarily responsible for each of the activities set forth in the Interrogatory ….” The defendant had referred the plaintiff to the defendant’s document production as a source from which the plaintiff could identify the identities of the individuals sought by the interrogatory, but the Special Master rejected that approach, since the plaintiff could not, simply by reference to the document production, “locate and identify [the relevant individuals] as readily as” the defendant could.
The parties also disputed what the appropriate number of record custodians should be searched by the defendant, with the plaintiff identifying 60 such individuals, and the defendant willing to search only 7. The Special Master found that the Default Standard was triggered by the parties’ disagreement, meaning that the defendant was required to search 10 custodians. He added, though, that “[i]n the event that Frontier is able to provide particularized information which demonstrates the need for an expanded search, the Court will consider such supplemental application, and Google’s response thereto, consistent with the standards set forth in the Federal Rules.”
Next, the Special Master endorsed the defendant’s preference for Boolean searches, but found that its proposed searches were too narrow. He ordered, as a result, that the defendant broaden its searches. Further, the plaintiff was permitted, consistent with the Default Standard, to provide the defendant with 10 additional search terms beyond the broadened Boolean searches proposed by the defendant.
The Special Master then considered a dispute over the production of the defendant’s source code. The plaintiff moved to compel the production of all of the source code of the Accused System, while the defendant’s position was that it should only be required to produce the source code related to the alleged infringement. Special Master White found that the parties had negotiated sufficient safeguards for access to source code in their protective order such that the defendant’s interest in safeguarding its source code would be protected. Accordingly, he ordered that the defendant make its source code available for review consistent with the protective order.