Case 1:22-cv-00252-MSG Document 134-7 Filed 10/03/23 Page 1 of 3 PageID #: 1868
`Case 1:22-cv-00252-MSG Document 134-7 Filed 10/03/23 Page 1 of 3 PagelD #: 1868
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`Case 1:22-cv-00252-MSG Document 134-7 Filed 10/03/23 Page 2 of 3 PageID #: 1869
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`SPRINT COMMUNICATIONS CO. LP. v. CEQUEL COMMUNICATIONS, LLC et al.,
`C.A. 18-1752-RGA
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`SPECIAL MASTER ORDER ON SPRINT'S MOTION AS TO ESI CUSTODIANS
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`On October 21, 2019 Sprint Communications Co. LP. ["Sprint"] moved with
`a supporting brief and exhibits to compel Cequel Communications, LLC
`["Cequel"] to identify and produce e mails from two individuals pursuant to the
`ESI Order. On October 23 Cequel filed its reply brief and exhibits. An in-person
`hearing was held on October 25 in Wilmington, Delaware.
`Sprint alleges that Cequel identified only eight custodians, three of which
`were for email collection, and that the ESI Order provides for ten custodians.
`After searching its documents, Cequel reported that it had only three custodians
`for whom it could collect relevant e mails. Cequel states that this results from the
`fact that Sprint has waited fourteen years to bring suit. After such a long time,
`these are the only custodian individuals it could locate. It also notes that the ESI
`Order limits discovery to "appropriate limits" and that this motion should be
`decided based on the ESI Order.
`As to the legal standard to decide this motion, I read the ESI Order as
`requiring a showing of "good cause" by the moving party before compelling the
`opposing party to designate a custodian and search the individual's emails after
`that party has submitted its designation of custodians. This burden of good
`cause on the moving party to persuade me that it is entitled to require its
`opponent to name someone as an email custodian can not be lightly met. The
`burden might be met if it is obvious that the person has relevant non privileged e
`mails.
`Sprint has identified two Cequel individuals as to whom it contends should
`be listed as custodians and whose e mails should be produced.
`As to Mr. Rosenthal, a former Cequel attorney, Cequel submits that as such
`Mr. Rosenthal's documents are not per se discoverable. Sprint contends that
`Cequel took the position during discovery that it would be unduly burdensome to
`search his documents for relevant non-privileged communications. Even if such a
`burden existed , Sprint writes that it provided Cequel with targeted search terms
`to reduce Cequel's burden in the search. Sprint argues that Mr. Rosenthal's
`documents may relate to Cequel's equitable defenses. As of the date of Sprint's
`brief, Cequel had provided no evidence supporting a claim of burden.
`At the Hearing Cequel did not rely solely on its burden, but emphasized
`that under the ESI Order Sprint has the burden of showing"good cause" to have
`Mr. Rosenthal treated as a custodian and his emails searched. With Cequel's
`answering brief, it submitted the affidavit of Ms. Baneman. This brief reports that
`in a search of approximately of 3% of 977 e mails subject to Sprint's search
`terms, there were no responsive non-privileged Mr. Rosenthal e mails. The
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`Case 1:22-cv-00252-MSG Document 134-7 Filed 10/03/23 Page 3 of 3 PageID #: 1870
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`affidavit states that Mr. Rosenthal acted in a purely legal capacity. While I regret
`that this affidavit was not submitted to Sprint prior to its motion, I can not ignore
`it for purposes of deciding this motion. It provides evidence that Mr. Rosenthal is
`not likely to have relevant non-privileged information. Sprint can not meet its
`burden of showing good cause to require Cequel to make Mr. Rosenthal a
`custodian under the ESI Order.
`As to Ms. Meduski, Sprint contends that it is entitled to demand that she
`be designated as a custodian under the ESI Order because she is a Cequel
`executive who may have attended at least one meeting when a license to the
`subject patents was discussed. Cequel responded that attending such a meeting,
`without admitting that she did attend, does not make her necessarily a
`custodian, and Cequel has already identified two custodians who attended the
`meeting and produced their emails. It does not seem that merely being invited to
`an important meeting requires Ms. Meduski to be identified as a custodian and
`her emails searched. Here too, Sprint can not sustain its burden of showing good
`cause that she should be designated as a custodian.
`Accordingly, Sprint's Motion to compel certain individuals to be identified
`as custodians under the ESI Order is Denied as of October 31 , 2019.
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`Allen Terrell, Special Master
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