A few weeks ago, Apple filed a motion alleging that Google's efforts to respond to Apple's discovery requests -- with respect to its ongoing suit against Samsung -- were lacking. Specifically, Apple claimed that the search terms Google employed in response to Apple's document production requests weren't sufficiently inclusive and consequently left out documents that would have otherwise been responsive.
Apple's brief stated in part:
Apple believes Google purposely uses suboptimal search terms. For example, Apple claims to know that Google uses a different term internally for what Apple calls "slide to unlock". As a result, searches for "slide to unlock" wouldn't deliver too many documents in which Google employees discussed this patented technology.
As a result, Apple's motion sought to compel Google to provide its list of "search terms and custodians" as to ensure that its search methodology was comprehensive. Google balked, arguing that doing so would constitute an "undue burden."
Now, FOSS Patents is reporting that Magistrate Judge Paul S. Grewal has granted Apple's motion to compel Google to turn over its search terms and its list of custodians.
Point blank, the court doesn't buy into Google's assertion that producing a list of search terms and relevant custodians amounts to an undue burden, noting that Google failed to provide even one shred of evidence to suggest that doing so "would be oppressive or burdensome."
Somewhat comically, a footnote in the ruling reads:
The court cannot help but note the irony that Google, a pioneer in searching the internet, is arguing that it would be unduly burdened by producing a list of how it searched its own files.
Google, meanwhile, previously argued that Apple, instead of asking for search terms and lists of custodians, could have simply told Google which documents it believed to be missing or even offer Google a list of suggested search terms that might produce more responsive hits. Notably, Apple refused both of these requests when Google offered them up.
In framing his ruling, Judge Grewal wrote that transparency and collaboration is "essential to meaningful, cost-effective discovery." That said, Google's position as a third party does not remove its burden to be transparent with respect to its own discovery methods.
Google's attempt to stand outside of these tenets because of its third-party status is unpersuasive. Although it should not be required to subsidize litigation to which it is not a party, it confuses undue burden with its obligations, once subject to a subpoena, to participate in transparent and collaborative discovery. Third-party status does not confer a right to obfuscation or obstinacy.
So Apple is effectively getting what it wants here, though it didn't escape the ruling entirely unscathed. Grewal writes that Apple should have requested search terms from Google at the very beginning, instead of waiting until it began suspecting that Google's search methodology was flawed. Grewal also writes that Apple could have taken up Google on its offer to discuss which documents in particular Apple felt were missing from production.
Nonetheless, the court's ruling reads:
The court finds that production of Google's search terms and custodians to Apple will aid in uncovering the sufficiency of Google's production and serves greater purposes of transparency in discovery. Google shall produce the search terms and custodians no later than 48 hours from this order. Once those terms and custodians are provided, no later than 48 hours from the tender, the parties shall meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regrading Google's production.