256 F.R.D. 403 (S.D.N.Y. 2009)
I. INTRODUCTION
Several discovery disputes have arisen in the context of a large securities fraud case brought by the Securities and Exchange Commission (“SEC”) against the Collins & Aikman Corporation (“C & A”) and a number of individual defendants. Specifically, defendant David A. Stockman — former CEO of C & A — has challenged the SEC’s response to his requests for production. These disputes present important questions concerning the Government’s discovery obligations in civil litigation.
II. BACKGROUND
The Complaint alleges that the defendants were involved in a securities fraud from late 2001 through early 2005. The SEC asserts that C & A perpetrated various accounting frauds “designed in part to create the appearance that C & A’s financial performance was improving under Stockman’s direction.”
In 2001, C & A solicited a three million dollar loan that would be represented for accounting purposes as income. The lender transferred the money to C & A in January 2002, and C & A recognized it as a reduction of costs that had the effect of increasing income. Pursuant to its understanding with the lender, C & A later transferred three million dollars in equipment to the lender. In late 2002, C & A further inflated its reported income by purchasing assets from the same lender at a price exceeding their market value in return for “rebates” of the excess.
Supply contracts sometimes provide for suppliers to pay rebates if the parties conduct a specified volume of business. However, Generally Accepted Accounting Principles (“GAAP”) permit customers to take such rebates into account as purchase price reductions only when the specified business has been effected. In 2002, C & A’s purchasing department arranged for suppliers to create documents that tied rebates to past purchases so that the rebates would have the immediate effect of increasing reported income.
A variation of the false rebate transaction involved purchases of capital equipment. Under GAAP and federal income tax law, the purchase price of capital equipment cannot be immediately deducted as an expense in the period it is incurred but can be depreciated over a time period that bears some relation to the expected lifetime of the equipment. GAAP specifies that because rebates on capital equipment affect the purchase price of the equipment, they cannot be recognized as immediate income. Nevertheless, C & A improperly characterized rebates received on capital purchases as income. Stockman and others produced false documentation to support the fraudulent accounting treatment.
C & A also misstated its earnings in the Forms 10-Q and 10-K that it filed with the SEC from 2001 through 2004 and repeatedly misrepresented its financial condition to investors. It additionally misstated its finances to the General Electric Capital Corporation in order to enhance its ability to borrow money. The SEC alleges that Stockman made each of these misstatements or that they were made at his behest.
In connection with these and other transactions, the SEC asserts that all defendants violated section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Exchange Act Rule 10b-5. The SEC also asserts a variety of other claims against defendants.
III. THE DISCOVERY DISPUTES
This opinion addresses four distinct but related discovery disputes. Stockman served a document request pursuant to Rule 34, asking the SEC to “produce for inspection and copying the documents and things identified” in fifty-four separate categories. In response, the SEC produced 1.7 million documents (10.6 million pages) maintained in thirty-six separate Concordance databases— many of which use different metadata protocols. Stockman raises the following objections.
First, the SEC failed to identify documents responsive to requests for documents supporting particular factual allegations in the Complaint, preferring instead to “dump” 1.7 million potentially responsive documents on Stockman and then suggesting that he is capable of searching them to locate those that are relevant.
Second, the SEC failed to perform a reasonable search for documents relating to accounting principles governing supplier rebates — both in general and with respect to the automobile industry. Instead, the SEC unilaterally limited its search to three of its divisions — and only if those divisions possessed “centralized compilations of non-privileged documents dealing specifically with rebates or accounting for rebates in the automobile industry.”
Third, the SEC improperly asserted the deliberative process privilege with regard to certain documents.
Fourth, the SEC failed to search its own emails, attachments thereto, and other records created and maintained solely in an electronic format that related to either “(i) the investigation and litigation of this matter or (ii) the handling of several large cases unrelated to C & A and the Commission’s regulatory role in matters relating to rebates and rebate accounting.” The objections were raised in a series of letters rather than by formal motion.
These disputes raise four important questions concerning the responses of a government agency to routine discovery requests. (1) Whether identifying responsive documents that have been organized by the producing party invades the protection accorded to attorney work-product and how a government agency — acting in its investigative capacity — must respond to a request for the production of documents. (2) Whether a government agency may unilaterally restrict the scope of its search based on an assertion of an “undue burden” on limited public resources. (3) How much information the Government must disclose in order to allow an adversary — and the court — to assess an objection based on the deliberative process privilege. (4) Whether a government agency may unilaterally exclude its own e-mail from document production on the ground that most — but not all — will be privileged.
IV. PRODUCTION OF RESPONSIVE DOCUMENTS
A. Request and Response
The SEC responded to each request for documents supporting a factual allegation in the Complaint by claiming that it “does not maintain a document collection relating specifically to the subject addressed.” Rather it provided an omnibus collection of indices, investigative documents, scanned paper documents, and audio/video media. It also provided the location within Concordance document databases of documents identified in the Complaint. The SEC contends that this production comports with the manner in which the documents “ ‘are kept in the usual course of business.’ ”
Stockman notes that the SEC has in fact already segregated documents into “ ‘approximately 175 file folders’” that correlate to specific factual contentions and that these documents are now maintained in the usual course of agency business. Stockman argues that by refusing to produce previously identified documents, the SEC has provided an impermissible “document dump” that buries the relevant evidence. The SEC contends that the “compilation itself is attorney work product and its disclosure would reveal the ‘mental impressions, conclusions, opinions, and legal theories’ of Commission counsel.” The SEC also concedes that the documents are not inaccessible, as review of massive document databases is routinely conducted in large-scale commercial litigation and presumably has occurred or will occur in this case. Rather, the SEC claims that Stockman seeks to determine its litigation strategy through this production.
Moreover, Stockman demands access to a collection of approximately 1,500 documents tagged by an SEC accountant using forty-five subject and witness designations and two collections of documents previously assembled by Davis Polk & Wardwell (“DPW”) during an internal investigation of C & A. The SEC objects that the inclusion of those collections in the files maintained by its lead litigation attorney is a result of “the same independent judgment” of the attorney and therefore subject to work product protection.
B. Applicable Law
The Second Circuit has recognized that the selection and compilation of documents may fall within the protection accorded to attorney work product, despite the general availability of documents from both parties and non-parties during discovery. However, it has labeled this protection a “narrow exception” aimed at preventing requests with “the precise goal of learning what the opposing attorney’s thinking or strategy may be.” Moreover, equity favors rejection of work product protection to a compilation of documents that are otherwise unavailable or “beyond reasonable access.” The Circuit has suggested that a court may permit ex parte communication of the strategy the withholding party wishes to conceal and in camera review of documents, so that the court may make an educated assessment whether production of the compilation will reveal a party’s litigation strategy.
If a court does find that work product protection applies to a document compilation, the requesting party must show “substantial need” for the materials and inability to obtain the substantial equivalent by other means without “undue hardship.” The showing of need must be “ ‘highly persuasive’ ” when discovery of “core work product is sought.” “Core work product” is defined as an attorney’s “mental impressions, conclusions, opinions, or legal theories” and is contrasted with “ordinary fact work product.”
Several cases that found a compilation of documents subject to work product protection addressed requests for compilations prepared to assist witnesses, rather than requests for information already arranged by subject matter. Those requests focused on the attorney’s thought process concerning witness preparation and strategy, rather than the broader facts of the case. On the other hand, Second Circuit cases rejecting application of work product protection addressed compilations of documents not otherwise available or large compilations.
Under Rule 34 of the Federal Rules of Civil Procedure, a party has two options for the production of documents in response to a discovery request. The litigant may either produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The Advisory Committee Note states that the purpose of this new rule language added in 1980 — was to eliminate the practice of “ ‘deliberately [mixing] critical documents with others in the hope of obscuring significance.’ ” Allowing the production of documents as they “are actually kept in the usual course of business” was intended to minimize the burden of production while maintaining the “internal logic reflecting business use.”
Rule 34 does not elaborate on the term “usual course of business.” A party choosing to produce documents as maintained in the ordinary course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.” In most cases, documents produced pursuant to Rule 34 will be organized by subject matter or category. The provision prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.”
C. Discussion
It is first necessary to determine the level of protection afforded to the selection of documents by an attorney to support factual allegations in a complaint. Such documents are not “core” work product. Core work product constitutes legal documents drafted by an attorney — her mental impressions, conclusions, opinions, and legal theories. This highest level of protection applies to a compilation only if it is organized by legal theory or strategy. The SEC’s theory — that every document or word reviewed by an attorney is “core” attorney work product— leaves nothing to surround the core. The first step in responding to any document request is an attorney’s assessment of relevance with regard to potentially responsive documents. It would make no sense to then claim that an attorney’s determination of relevance shields the selection of responsive documents from production.
Moreover, the selection of documents according to facts alleged in a pleading does not elevate the compilation to core work product. Although a complaint includes some amount of legal theory and strategy, Rule 11 of the Federal Rules of Civil Procedure requires all parties to have “evidentiary support” for the factual contentions in their pleadings. Given that requirement, producing the compilations of documents that support the factual allegations of a complaint reveals no more than that already revealed by the filing of the complaint. Thus is it no surprise that in one recent case outside the Circuit, a court required plaintiffs to provide the location of documents that supported factual allegations in the complaint, even when the documents were already in defendants’ possession in an omnibus production similar to the one in this case.
Even if this compilation were entitled to any work product protection — on the tenuous theory that the compilation was prepared in anticipation of litigation — Stockman has demonstrated that he has a “substantial need for the materials ... and cannot, without undue hardship, obtain their substantial equivalent by other means.” The need for the material is obvious. While the responsive documents exist somewhere in the ten million pages produced by the SEC, the production does not respond to the straightforward request to identify documents that support the allegations in the Complaint, documents Stockman clearly must review to prepare his defense.
The question of “undue hardship” is more interesting. The SEC contends that Stockman can search through the ten million pages and find substantially the same documents identified by the SEC without impinging on the thought processes of the SEC attorneys. Indeed — at significant expense and delay — Stockman could search the document databases using appropriate search terms, but the inaccuracy of such searches is by now relatively well known. A page-by-page manual review of ten million pages of records is strikingly expensive in both monetary and human terms and constitutes “undue hardship” by any definition.
Moreover, the Second Circuit has expressly stated that equitable considerations may be weighed when determining the scope of the “narrow exception” protecting the “selection and compilation of documents by counsel for litigation purposes” based on the work product doctrine. While not deciding the question in that case, the Second Circuit did note that the “equities might not favor the application of the ... exception if the files from which documents had been culled ... were ... beyond reasonable access ....” It is patently inequitable to require a party to search ten million pages to find documents already identified by its adversary as supporting the allegations of a complaint. Thus, under either the undue hardship analysis of Rule 26 or the equities suggested by the Second Circuit, the 175 file folders prepared by the SEC’s attorney are not protected by the work product doctrine.
By the same token, neither the set of documents labeled by an SEC accountant nor the documents provided by DPW are entitled to any work product protection. These compilations do not reflect the “mental impressions, conclusions, opinions, and legal theories” of counsel for the SEC. The SEC’s claim that the documents were only retained as a collection because of the decision of counsel is not enough to place them within the realm of its attorney’s work product. Permitting a party to shield production of a compilation simply because an attorney makes the decision to continue to hold the documents in the same manner would result in impermissible gamesmanship and an unwarranted expansion of the work product doctrine.
The SEC contends that even if the compilations are not protected as work product, it has the option of producing the complete, unfiltered, and unorganized investigatory file, as this is how the documents are maintained in the usual course of its business. As noted above, Rule 34 mandates that documents must be produced organized by the subjects of the request or organized as they are kept in the usual course of business by the producing party. The key to this dichotomy is the assumption that in either case the documents will be organized — that records kept in the usual course of business would not be maintained in a haphazard fashion. Thus regardless of the form chosen, the production will be useful to the requesting party, and neither choice will inject unnecessary time and cost into litigation.
In order to determine what constitutes an appropriate production of records as they are kept in the “usual course of business,” it is first necessary to define that term. To begin with, not every litigant is a business or functions in the manner of a business. Black’s Law Dictionary defines a business as “[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” Only as a secondary definition, business constitutes “[b]y extension, transactions or matters of a noncommercial nature.”
Congress debated a similar issue in the context of Federal Rule of Evidence 803(6), the exception to the hearsay rule for records of regularly conducted business activity. The original proposal for the Rule — submitted by the United States Supreme Court to Congress — would have permitted a record made “in the course of a regularly conducted activity” to be admissible in certain circumstances. The House Judiciary Committee concluded, however, that “there were insufficient guarantees of reliability in records made in the course of activities falling outside the scope of ‘business’ activities as that term is broadly defined in 28 U.S.C. § 1732.” The House Committee thus amended the proposed Rule to limit its scope to business records, defining “business” to include “business, profession, occupation and calling of every kind.”
The Senate Judiciary Committee eliminated the business requirement inserted by the House, but the business provision was eventually reinstated in the Conference Committee. “The Conferees changed the definition of ‘business’ contained in the House provision in order to make it clear that the records of institutions and associations like schools, churches and hospitals are admissible under [Rule 803(6) ].” In its final form, Rule 803(6) defines business as any “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
By rough analogy to Rule 803(6), the option of producing documents “as they are kept in the usual course of business” under Rule 34 requires the producing party to meet either of two tests. First, this option is available to commercial enterprises or entities that function in the manner of commercial enterprises. Second, this option may also apply to records resulting from “regularly conducted activity.” Where a producing party’s activities are not “routine and repetitive” such as to require a well-organized record-keeping system — in other words when the records do not result from an “ordinary course of business” — the party must produce documents according to the sole remaining option under Rule 34: “organize[d] and la-belled] ... to correspond to the categories in the request.”
The logic of Rule 34 supports this limitation. When records do not result from “routine and repetitive” activity, there is no incentive to organize them in a predictable system. The purpose of the Rule is to facilitate production of records in a useful manner and to minimize discovery costs; thus it is reasonable to require litigants who do not create and/or maintain records in a “routine and repetitive” manner to organize the records in a usable fashion prior to producing them.
How does this rule apply to the Government? In many cases, the Government acts in the manner of a commercial entity by — for instance — purchasing equipment from defense contractors, selling maps to backpackers, and executing contracts to construct buildings. In such cases, records will be generated reflecting purchases and sales, employee performance and salaries. Presumptively those records are created and maintained in an efficient fashion such that production as they are kept in the ordinary course of business would allow for easy analysis of — for example — a contract, False Claims Act, or a Title VII claim.
However conducting an investigation — which is by its very nature not routine or repetitive — cannot fall within the scope of the “usual course of business.” While the SEC routinely collects and maintains regulatory submissions such 10-K reports, in its investigative capacity the agency conducts tailored probes of a company or an industry, requiring the gathering of records from diverse sources. Many if not most of the 1.7 million documents in the SEC production here were likely collected in the agency’s investigatory role. Thus it is no surprise that the complete collection is maintained as it was collected — in large disorderly databases. The documents can only be provided in a useful manner if the agency organizes or labels them to correspond to each demand. Based on the SEC’s submission, it appears that this has already been done through the lead litigation attorney’s creation of the 175-plus file folders at issue.
Therefore, the SEC must respond to Stockman’s request for production by providing him with the documents that respond to those requests. Stockman has not requested the SEC file folders as such, but many of them correlate with the factual allegations in the Complaint, the subjects of the requests. Thus, to the extent that one or more of the 175 folders assembled by the SEC’s attorneys constitute the complete set of documents relevant to a particular request, they must be produced. Similarly, to the extent that compilations made by the SEC’s accountant and those contained in the DPW binders are responsive to a request, they also must be produced.
V. GENERAL SUBJECT-MATTER DOCUMENTS
A. Request and Response
Stockman has also made six requests for documents related to SEC enforcement actions involving rebates, SEC policy related to rebates, rebate policy specific to the automotive industry, a particular General Motors filing, and testimony concerning automotive rebates. Stockman justified these requests by noting that a key allegation in the Complaint is that Stockman participated in C & A’s improper accounting for rebates received from suppliers. Stockman argues that such rebate transactions were common in the automobile industry during the relevant time period. Finally, Stockman asserts that “[b]ecause the accounting principles applicable to C & A’s rebate transactions play a central role in the Commission’s allegations ... [he is] seeking documents in the Commission’s possession, custody or control concerning principles governing accounting for such rebate transactions and specific accounting practices in the automobile industry for such transactions during the relevant period[.]” The SEC objected to each of these requests as overbroad and unduly burdensome and to some as vague, ambiguous, and lacking reasonable particularity. Moreover, the SEC has rejected Stockman’s proposal that it establish a search protocol that would balance identification and disclosure of relevant documents against a strain on agency resources. Rather, the SEC unilaterally limited its search to “centralized compilations” in three selected divisions; these searches turned up nothing. It claims that the “massive endeavor” of manual searches of large collections of paper records from analogous cases is “neither justified nor required.” It also states that records concerning rebate policy and regulatory enforcement are maintained “by registrant, not topic” and primarily in paper form, making the burden of production disproportionate to the value of the litigation.
B. Applicable Law
“A district court has wide latitude to determine the scope of discovery.” The general scope of discovery in civil litigation is defined by Rule 26(b)(1).
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense— . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
A court must limit the “frequency or extent of discovery” if one of three conditions in Rule 26(b)(2)(C) is present. The third limits production when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” The burden or expense may be defined in terms of time, expense, or even the “adverse consequences of the disclosure of sensitive, albeit unprivileged material.”
C. Discussion
The SEC’s blanket refusal to negotiate a workable search protocol responsive to these requests is patently unreasonable. Stockman has made a convincing case that he is seeking relevant information well within the scope of discovery permitted by Rule 26(b)(1) and that proportionality considerations should not foreclose a broader search effort than that already conducted by the SEC. Although party resources must be taken into account under Rule 26(b)(2)(C), these requests seem particularly reasonable in an action initiated by the SEC. Like any ordinary litigant, the Government must abide by the Federal Rules of Civil Procedure. It is not entitled to special consideration concerning the scope of discovery, especially when it voluntarily initiates an action.
With few exceptions, Rule 26(f) requires the parties to hold a conference and prepare a discovery plan. The Rule specifically requires that the discovery plan state the parties’ views and proposals with respect to “the subject on which discovery may be needed ... and whether discovery should be conducted in phases or be limited to or focused on particular issues” and “any issues about disclosure or discovery of electronically stored information ....” Had this been accomplished, the Court might not now be required to intervene in this particular dispute. I also draw the parties’ attention to the recently issued Sedona Conference Cooperation Proclamation, which urges parties to work in a cooperative rather than an adversarial manner to resolve discovery issues in order to stem the “rising monetary costs” of discovery disputes. The Proclamation notes that courts see the discovery rules “as a mandate for counsel to act cooperatively.” Accordingly, counsel are directly to meet and confer forthwith and develop a workable search protocol that would reveal at least some of the information defendant seeks. If the parties cannot craft an agreement, the Court will consider the appointment of a Special Master to assist in this effort.
VI. DELIBERATIVE PROCESS PRIVILEGE
A. Request and Response
The SEC has refused to produce twenty-nine responsive documents based on assertions of the deliberative process privilege. Twenty-five are responsive to Requests 33 through 37, which demand documents related to new accounting standards being considered by the Emerging Issues Task Force within the Financial Accounting Standards Board. Three relate to Request 47, which concerned a restatement and new rebate accounting policy for General Motors. The last is responsive to Requests 40 and 42, which relate to accounting justifications used in other enforcement actions concerning rebates. The SEC has produced a privilege log that lists the type of document, the date, the document’s length, the author or authors, the addressees, and a brief statement of the subject.
B. Applicable Law
The deliberative process privilege protects from disclosure “ ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” The privilege is intended “ ‘to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government.’ ”
In order to qualify for the privilege, a document must be “predecisional” and “deliberative.” A document is predecisional if it was “ ‘prepared in order to assist an agency decisionmaker in arriving at his decision.’ ” The agency claiming privilege “must be able to demonstrate that ... the document for which ... privilege is claimed related to a specific decision, facing the agency.” Moreover, the privilege does not extend to “ ‘purely factual’ material” or subjective discussions insofar as they were later adopted or incorporated in a final agency opinion. A document is deliberative if it is “ ‘actually ... related to the process by which policies are formulated.’ ” Factors used to determine whether a document is deliberative include “whether the document ‘(i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.’ ”
C. Discussion
As an initial matter, the privilege log that the SEC has produced is deficient. The listings for documents 1 through 4 are good examples. The SEC has provided Stockman and the Court with no more useful information than the type of document (a memorandum), the addressees (various SEC staff), and the subject matter (Issue 00-25, a policy statement superceded by Issue 01-09, the subject of Request 33). Given this information, the Court is unable to evaluate whether any or all of these four memoranda are privileged, let alone understand why the SEC produced other memoranda on the same subject. The SEC asks the Court simply to take its word that these particular documents were predecisional, deliberative, purely subjective, and neither adopted nor incorporated in the agency’s final decision. That cannot be sufficient.
Although the SEC’s letter provides additional explanation for the assertion of privilege to broad categories of documents, it should not be necessary for a party to seek court intervention in order to receive sufficient information to assess the strength of an adversary’s privilege claim. Even taking into account the SEC’s assertions that the documents uniformly address decisions concerning the position the SEC will take on accounting matters or investigations, the agency has not noted the extent to which the memoranda were adopted in the final agency position (and thus provide additional background or analysis analogous to legislative history). While the deliberative process privilege protects important government interests, it still must be construed narrowly, as sustaining any privilege prevents a party from obtaining access to otherwise relevant information. Accordingly, the SEC must submit these documents for in camera review, together with a short memorandum explaining why each document is entitled to protection. A redacted version of the memorandum must be produced to Stockman. These materials must be submitted to the Court within twenty days of receipt of this Opinion and Order.
VII. E-MAIL
A. Request and Response
The SEC’s document production and its privilege log include no e-mails or attachments to e-mail. The SEC notes that several hundred thousand e-mails are contained within its omnibus production, but it concedes that it has not produced e-mail “generated or received by the Commission itself.” Stockman seeks production of e-mails related to the full breadth of his requests for production: (1) investigation and litigation concerning C & A, (2) the handling of other cases concerning rebate accounting, and (3) the SEC’s regulatory role concerning rebates and rebate accounting.
The SEC rebuts that nearly all responsive e-mails will be privileged, protected, or non-substantive. The SEC additionally asserts that e-mails concerning the C & A investigation will also be subject to this Court’s nondisclosure order, which bars the SEC from disclosing the identity of witnesses subpoenaed or interviewed and the substance of their testimony. The SEC concludes that Stockman has not made the “necessary showing” so as to require it to undertake the “costly and time-consuming search that would be required to identify responsive emails ....” Finally, with respect to the remaining two categories, the SEC is critical of the lack of specificity in defendant’s request, noting — for example — that Request 43 seeks all documents relating to “accounting for rebates” without any limitation for time period, industry, or other criteria. Given this breadth, the SEC notes that it would be required to search through the e-mails of hundreds of attorneys and accountants over an indefinite period of time.
B. Applicable Law
It is by now well established that electronically stored information is subject to discovery. Yet — as with all other discovery — the limitations of Rule 26(b)(2)(C) apply, as do the specific limitations of Rule 26(b)(2)(B) when a party asserts that such information is not reasonably accessible. It is also well established that discovery is only permitted with respect to “nonprivileged matter that is relevant to any party’s claim or defense.” Finally, the Rules recognize the need to protect materials that would reveal the “mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.”
C. Discussion
Because e-mails are inherently searchable, the SEC’s blanket refusal to produce any incoming or outgoing e-mails is unacceptable. Without even an attempt to negotiate search terms that would weed out privileged, protected, or irrelevant e-mails, the SEC cannot reasonably assert that a routine aspect of modern discovery — search and review of a party’s e-mail — is beyond its capability. Essentially, the SEC’s position is that the cost of such a search is simply too high, but it has made no effort to document the cost or the likelihood that it would produce relevant, nonprivileged material. The concept of sampling to test both the cost and the yield is now part of the mainstream approach to electronic discovery. However, the SEC correctly notes that the some of the requests may be overbroad and unduly burdensome. In considering requests for cost-shifting with respect to expensive and burdensome discovery, this Court has noted that the most important consideration is “[t]he extent to which the request is specifically tailored to discover relevant information.” A quick look at Request 43 — discussed above — reveals that Stockman’s request is not specifically tailored and must be revised.
Once again, the parties are directed to meet and attempt to negotiate a reasonable search protocol (considering the use of appropriate search terms and appropriate limitations of subject matter and date) and then to consider applying this search protocol to a segment of the SEC’s e-mail collection to determine whether relevant nonprivileged material might be identified and produced considering all of the factors set forth in Rule 26(b)(2)(C).
VIII. CONCLUSION
When a government agency initiates litigation, it must be prepared to follow the same discovery rules that govern private parties (albeit with the benefit of additional privileges such as deliberative process and state secrets). For the reasons set forth above, the SEC is ordered to produce or identify documents organized in response to Stockman’s requests; to negotiate an appropriate search protocol to locate documents responsive to requests described above in Part V; to submit materials allegedly covered by the deliberative process privilege to the Court for in camera review, together with a supporting memorandum within twenty days of the date of this Order; and to negotiate an appropriately limited search protocol with respect to agency e-mail. While the SEC has raised legitimate concerns about the burdens imposed by particular requests, it cannot unilaterally determine that those burdens outweigh defendants’ need for discovery. At the very least, the SEC must engage in a good faith effort to negotiate with its adversaries and craft a search protocol designed to retrieve responsive information without incurring an unduly burdensome expense disproportionate to the size and needs of the case. The parties are therefore directed to engage in a cooperative effort to resolve the scope and design of a search with respect to the rebate issues and a search of e-mail created and maintained by the SEC. A conference is scheduled for February 13, at 5:00 p.m., by which date the parties should have completed the meet and confer process in the hope of establishing an acceptable discovery program. If the parties remain at an impasse, the Court will be prepared to resolve further disputes and will consider the appointment of a Special Master to supervise the remaining discovery in this case.
SO ORDERED.