Simon Property Group, Inc. v. Taubman Centers, Inc., Case No. 07-X-51024 (E.D. Mich. January 24, 2008)

Simon Property Group (“SPG”) served a subpoena on Taubman seeking testimony and documents, including significant amounts of ESI. Taubman objected and both parties filed motions. Taubman made the usual burdensome and expensive argument, but this one had some teeth. Magistrate Judge Mona K. Majzoub acknowledged that Taubman established “that a search with the terms provided by SPG resulted in the identification of over 250,000 files and that it would take three employees working full time for four weeks to review these files to determine if they are within the scope of the subpoena.” Slip Opinion at 9. In response, the court noted that SPG had offered to narrow the scope of the subpoena – this is a year after the subpoena was served, and SPG is still “offering” to narrow the scope – “by altering the time periods, search terms, and perhaps by dropping some servers from the search.” So the court ordered enforcement of the subpoena “with the provision that both parties work in good faith to reduce its scope.” And production must be completed by February 27.

It could be the cynic in me, but I’m having a difficult time believing that the parties will succeed in reducing the number of files to something reasonable. Recall that last year in Guy Chemical Co. v. Romaco AG, discussed here, the N.D. of Indiana court held that an expenditure of $7,200 to respond to a third party subpoena was an undue burden, and required the party seeking production to pay that cost as a condition to granting the motion. Here, there was no discussion of cost shifting. Taubman seemed more interested in preventing any production at all. Indeed, Taubman apparently did not reduce the employee time to an actual cost.

It’s conceivable that the difference between the cases reduces to something as simple as the amount at issue in the main case. SPG was apparently suing its former partner for fraud in connection with a buyout of its interest in a hugely successful shopping mall, where the total equity in the mall was over $415 Million. The Guy Chemical court, however, never mentioned the amount at issue in the main case, and seemed interested solely in the cost to the subpoenaed party. It remains to be seen whether the parties can agree on a reduction in the scope of the subpoena and whether Taubman will return to court seeking to shift the cost of production to SPG.

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