Verint Sys. Inc. v. Red Box Recorders Ltd., 14-cv-5403, 2016 WL 1644373 (S.D.N.Y. Apr. 25, 2016)

Key Insight: Court affirmed order of Magistrate Judge declining request for additional discovery based on Defendant?s alleged violation of the parties? protocol for discovery. Where parties agreed that each would disclose the eight custodians ?most likely? to have discoverable ESI, Plaintiff claimed that Defendant failed to name its VP of North American sales in a ?systematic and pervasive effort? to prevent the disclosure of discoverable documents. Magistrate Judge reasoned that Plaintiff needed to explain why its proposed custodians were better than those identified by Defendant and permitted Plaintiff to conduct a test search at its expense, which uncovered few additional documents. Magistrate Judge held that absent a showing that Defendant violated the protocol, it should be enforced, noting that ?for good or ill? Plaintiff had agreed to limit the searches. Affirming the order, the District Court noted that the protocol required the identification of custodians ?most likely? to have discoverable information (describing the ?before-the-fact perspective?) and not the custodians that IN FACT had the most discoverable ESI and also that Plaintiff had failed to take up the Magistrate Judge?s invitation to provide additional search terms for the test, which may have identified additional information to bolster their position

Nature of Case: Patent Infringement

Electronic Data Involved: ESI from 8 custodians “most likely” to have responsive information