Motion to Compel Plaintiff to Designate Additional Custodians Granted in Part

Burge v. Teva Pharmaceutical Industries, Ltd., 2025 WL 1100047 (D. Kans. Apr. 15, 2025), is an exceedingly complex case.  Based on the terms of an ESI Protocol, the court granted, in part, and denied, in part, a motion to compel plaintiff to designate additional custodians in Phase I discovery.  It applied a five-part test focused on whether a manifest deficiency was shown by the moving party.

Oversimplifying, Anne Arundel County, MD, and other plaintiffs asserted that defendants conspired to monopolize one medication pursuant to an agreement with others to stay out of the market.  Id. at *1.

Early on, the court bifurcated discovery.  Phase I discovery addressed only the timeliness or untimeliness of the claims under the statute of limitations, including related issues such as tolling and alleged fraudulent concealment.

The parties’ ESI Protocol was entered as an order and in part provided:

The parties shall…identify those key persons whose files are likely to contain documents relating to the subject matter of Phase I of this litigation, limited to the topics of the timeliness/limitations of Plaintiffs’ claims…as set out in the Court’s Order dated June 14, 2024 [D.I. 88] (each a “Phase I Custodian”), along with a description of the proposed Phase I Custodians’ job title and brief description of such person’s responsibilities….The parties retain the right, upon reviewing the initial production of documents, and conducting other investigation and discovery, to request that files from additional Phase I Custodians be searched and meet and confer regarding such request. [Emphasis in original].

Anne Arundel County designated five custodians from its Office of Personnel, the department that administered pharmacy benefits.

Anne Arundel County produced documents; however:

After Defendants reviewed that document production, they emailed Anne Arundel renewing their request for additional custodians, stating “Anne Arundel does not appear to have produced any documents that actually are responsive to [Defendants’] RFPs for which it agreed to produce documents.”

The court wrote:

Unable to resolve the dispute after further email exchanges, Defendants timely filed their motion requesting Anne Arundel designate additional Phase I custodians on February 14, 2025.

The Burge court described “the following general principles applicable to motions to compel a party to designate additional custodians.”  It wrote:

First, “determining what is relevant and proportional under the circumstances for each matter often requires a highly fact-specific inquiry.” Second, absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems “most likely to possess responsive information and to search the files of those individuals.” Third, unless the party’s choice is “manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient,” the court should not dictate the designation of ESI custodians. Fourth, the party seeking to compel the designation of a particular additional ESI custodian has the initial threshold burden of showing that the disputed custodian’s ESI likely includes information relevant to the claims or defenses in the case. This is because the party responding to discovery requests is typically in the best position to know and identify those individuals within its organization likely to have information relevant to the case. Fifth, mere speculation that one’s position as a senior executive might increase the relevance of that individual’s files is not a basis for designating that individual as a custodian.”

Id. at *3.

The Burge court applied those principles to defendants’ request that “Anne Arundel be compelled to designate, and produce responsive documents from, additional custodians, including the following three in-house attorneys who work in Anne Arundel’s Office of the Law….”

The court agreed as to one custodian, but not as to the other two.

Because of the lengthy, fact-sensitive nature of that inquiry, it is not described in this blog.  Suffice it to say that the court analyzed whether defendants met their burden of showing that Anne Arundel County’s document production from its existing custodians was so “manifestly unreasonable or deficient” that it justified additional custodians and, if so, whether “Defendants have established that the specifically identified in-house attorneys should be added as additional custodians because each is likely to have relevant, non-duplicative responsive documents.”  Additionally, it considered proportionality.  Id. at *4.

Quoting another case, the Burge court wrote:

While our courts normally play no role in search design, search tools, search terms or designation of custodians, a court may intervene when a party demonstrates that the choices of those items are manifestly unreasonable, or the requesting party demonstrates that the resulting production is deficient.

Id. at n. 21 (citations and quotations omitted).

After it engaged in a detailed, custodian-by-custodian analysis, the motion to compel was granted as to one custodian and denied as to two others.

The ESI Protocol in Burge provided for requesting additional custodians; however, it did not provide a standard for the reviewing court.  Fed.R.Civ.P. 29(b) allows parties to stipulate to any procedures governing of limiting discovery, with an exception not relevant here.  If the parties wanted to do so, they could have stipulated to either the five-part test of Burge or a different standard.