StubHub: “The Court is not going to do that.”

In the latest iteration of In Re StubHub Refund Litigation, 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024), the court began its decision of discovery issues with: “At the hearing Plaintiffs tried to walk back this [discovery] request and said it was limited to refund data, rather than a wholesale redo of non-custodial discovery. But that’s not true.” [emphasis added].

The court wrote that plaintiffs were requesting “a complete redo of non-custodial document discovery….”  However:

The Court is not going to do that. It’s not April 2022 anymore. We’re not starting this over from the beginning. The identification of non-custodial sources of data is a foundational issue, and you don’t get to make an objection to the other side’s disclosure and then hold on to that objection forever and ever, and years later ask to start the whole process over from scratch. No way.

The rest of the decision did not go well for plaintiffs.  The court rejected plaintiffs’ request for a query to “to serve as the jumping off point for a collaborative, potentially iterative conversation with persons with technical knowledge of StubHub’s data, aimed at identifying those tables containing relevant information needed to adequately answer Plaintiffs’ Interrogatories.”  Id. at *1 (emphasis added).  The court explained why it was not ordering that cooperative process:

Plaintiffs should ask for what they want in discovery. If StubHub won’t provide it, they should move to compel. If StubHub provides it, and Plaintiffs don’t understand it, they should serve a 30(b)(6) deposition notice. This is adversarial litigation, and there need to be clearly understood responsibilities. We need to know who did what. If data is produced, we need to know who collected it and produced it, so at the very least it can be used against them. There can’t be a blend of responsibilities that allows StubHub to both produce and disclaim the accuracy of data, saying it reflects choices its opponents made – or, worse, a muddy record that permits finger pointing and denial such that the data isn’t fully embraced by either side. While the Court understands Plaintiffs’ desire to get the “best” data, this is not a school project where everyone can get an A if they work together nicely. This is adversarial litigation where data is meant to be used against one side or the other, and Plaintiffs are overlooking the significant evidentiary problems that attend data that cannot be attributed to one of the litigants. Also, as discussed more fully below, because this data is being used to answer Plaintiffs’ interrogatories (“rogs”), please remember that Plaintiffs can’t answer their own rogs. [emphasis added].

The StubHub court continued:

StubHub’s constant refrain is that the Plaintiffs have no interest in litigating their claims on the merits and instead want to weaponize e-discovery to drag out discovery as long as possible. Plaintiffs are not doing a good job of proving StubHub wrong. This MDL proceeding is now four years old. In that time, StubHub has taken 35 depositions and moved for summary judgment. By contrast, Plaintiffs have taken one deposition, and that deposition wasn’t even their idea. The Court ordered them to take it as part of addressing a discovery dispute about hyperlinks embedded in documents….  Rather than refuting StubHub’s accusation that Plaintiffs are weaponizing e-discovery to drag things out, Plaintiffs seem almost to be walking into it.  [emphasis added].

The court then again rejected a request for an order to cooperate on a separate issue:

Plaintiffs again press their request for a collaborative and iterative process in which StubHub will make its technical consultants available for live conversation, and StubHub will run queries provided by Plaintiffs. The Court will not order that. Plaintiffs cannot answer their own rogs. You can move your opponent’s rog responses in evidence as the statement of a party opponent because your opponent said those facts are true. But you can’t do that if you answered the rog – or, as Plaintiffs desire here, if the two sides working together answered the rog. Litigation is designed to find the truth, but it is designed to find it in a particular way: adversarial testing. Even if the cooperation project that Plaintiffs envision resulted in objectively more accurate data, it would also result in data that couldn’t be attributed to either side. Certainly, StubHub could disclaim any knowledge of whether the queries Plaintiffs asked it to run were well or poorly designed. This raises important questions about the resulting data, such as: Who moves it in evidence? Which side offers the sponsoring witness? The value of a rog response isn’t necessarily that it’s the most accurate response (although, of course, it is supposed to be accurate) but that it was said by your opponent so you can use it against them. [emphasis added].

The court provided a step-by-step description of the workflow for discovery.