Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes

Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010)

Observing that plaintiff and counterdefendants had insisted upon “a review process that guarantees that they will not finish this extensive project in any reasonable amount of time”, namely reviewing large volumes of information without first narrowing the material using search terms, the court acknowledged the need to expedite production and directed plaintiff and counterdedendants to retain a third party vendor to assist in their discovery efforts.  Accepting defendant’s offer, the court further ordered that Cisco would bear half the cost.

In response to defendant’s requests for production, plaintiff and counterdefendants undertook the review and rolling production of responsive materials.  Citing costs, plaintiff and counterdefendants rejected the idea of hiring an outside vendor to search and narrow their electronically stored information.  Consequently, relying on approximately five attorneys, those parties undertook the review of “every bit of that giant mass of information for responsive documents.”  Unsurprisingly, the review did not proceed quickly and, as the discovery deadline approached, it became clear that the production would not be completed with enough time to allow Cisco to “actually do anything” with the documents.  Accordingly, Cisco sought an order directing the plaintiff and counterdefendants to retain a third party vendor to assist them in their efforts.  Moreover, Cisco offered to pay for half the cost.  Recognizing that “something must be done”, the Magistrate Judge recommended an order directing the retention of a third party vendor.  Having reviewed the relevant record, the District Court agreed and adopted the recommendation, including that Cisco pay half of the cost.

Recognizing the likelihood of future disagreement between the parties as to topics including plaintiff and counterdefendants’ document collection protocol, the best approach for narrowing the scope of the review, and the scope and production of privilege logs, the Magistrate Judge also recommended the appointment of a Special Master.  Moreover, the Magistrate Judge recommended that the Special Master be given the authority to “choose a third party vendor (if the parties cannot agree on one), craft a search protocol, establish deadlines, and otherwise resolve any future discovery disputes or objections in this case.”  This recommendation was also adopted by the District Court.