In this patent infringement action, Apple moved to compel production from Emblaze based on search terms that Apple provided. Emblaze opposed the motion, arguing that it had produced all responsive documents, that Apple's requests were overbroad and that using Apple's search terms would be unduly burdensome.
The court began its opinion by noting that "[w]hen decrying the burden imposed by the document demands of an adversary, parties would be wise to follow Hemmingway's advice to 'show the readers everything, tell them nothing.' Unfortunately, in the patent infringement case, [Emblaze] appears to have ignored Papa's guidance."
The court then found that Emblaze had not provided "to either Apple or the court any evidence of the universe of document custodians, a clear sense of the sources of discovery, or a sampling of responsive documents generated by Apple's proposed terms. Without this information, the court has an insufficient basis to determine the merit of Emblaze's objections and whether it has any justification for failing to produce responsive documents to Apple's requests."
The court then explained that this was no way to conduct document discovery and that it needed facts supported by evidence. "This is no way to conduct document discovery. This court is more than receptive to imposing strict limits on otherwise unbounded discovery, but it needs facts, supported by evidence, to draw the appropriate lines. It cannot do its job on the basis of mere complaints and suppositions."
To obtain these facts, the court then ordered Emblaze to provide additional information. "To remedy this situation, Emblaze shall file with the court and serve on Apple a declaration with information about the consequences of responding to Apple's requests. The declaration shall include a list of every Emblaze custodian with potentially responsive documents, a description of the data each custodian may have, whether that data is in electronic or hard copy format, and the time frame for the data. Emblaze also shall provide hit counts for each of Apple's proposed search terms and describe for Apple and the court its estimate regarding what financial and other burden, if any, it would sustain from producing the documents represented by the hit counts. Emblaze shall file this declaration with the court and serve Apple within seven days of this order."
Finally, the court ordered the parties to meet and confer quickly after the declaration was filed and served. "Not later than two days after Emblaze has filed its declaration, Apple and Emblaze shall meet and confer in person and attempt to reach agreement regarding Emblaze's production. If the parties cannot reach an agreement, no later than two days after their meeting they each may submit to the court one letter brief no longer than five pages in length describing the nature of the continued dispute. The court will then resolve any outstanding issues, including whether fees or sanctions are warranted."
Emblaze LTD v. Apple Inc., Case No. 11-1079 PSG (N.D. Cal. May 29, 2013)