Discovery Is Not Always Fair

In Finjan, Inc. v. Blue Coat Systems, Inc., No. 13-cv-03999 (N.D. Cal. Oct. 17, 2014), the parties agreed to a “fair” discovery plan where each party was to search email for the same number of custodians with the same number of search terms. However, defendant searched both active and archival email systems, while plaintiff only searched active systems and did not maintain a searchable archive.
The Court stated “[r]educed to its essence, Rule 26(b)(2)(iii) requires this court to decide: have [a party’s] discovery responses been fair?” It rejected that fairness excuses a party from searching available sources where the party’s opponent cannot search similar sources – “[Defendant] may largely be in the right that it should not have to dig through legacy systems when [plaintiff] is unable to [do] the same for its custodians. But one party’s discovery shortcoming are rarely enough to justify another’s.”