In Finjan, Inc. v. Blue Coat Systems, Inc., No. 13-cv-03999 (N.D. Cal. Oct. 17, 2014), the parties agreed to a seemingly symmetrical e-discovery plan, with each party agreeing to search email for the same number of custodians and with the same number of search terms.  It later emerged, however, that the defendant was searching both active and archival email systems, while the plaintiff was only searching active systems and did not maintain archival system that could be searched.  The court agreed that “[r]educed to its essence, Rule 26(b)(2)(iii) requires this court to decide:  have [a party’s] discovery responses been fair?”  The court rejected the idea 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.”