## Facts

- BreathableBaby, LLC sued Crown Crafts, Inc. and Crown Crafts Infant Products, Inc. in federal court for patent infringement involving infant bedding products.
- The court entered a scheduling/discovery order incorporating an ESI production protocol that contemplated using keyword searches to locate responsive ESI.
- Crown Crafts later proposed an alternative to keyword searching: review of all employees’ ESI files for relevant discoverable material; BreathableBaby agreed.
- Crown Crafts did not review all employees’ ESI; it reviewed only selected custodians believed most likely to have relevant materials.
- Within the selected custodians’ files, Crown Crafts reviewed only files whose titles made relevance “obvious.”
- BreathableBaby moved to compel, asserting Crown Crafts’ ESI search and production were deficient and inconsistent with the agreed protocol and court order.

## Issues

1. Whether Crown Crafts complied with the court-ordered, agreed ESI protocol by limiting review to selected custodians and to files with “obviously” relevant titles.
2. Whether the court should compel Crown Crafts to redo or expand its ESI collection, review, and production to satisfy its discovery obligations.
3. Whether Crown Crafts’ narrowed ESI effort warranted remedial measures, including compelled production and potential sanctions-related consequences.

## Decision

- The court granted the motion to compel in substantial part.
- The court found Crown Crafts’ restricted ESI review did not satisfy the search obligations established by the discovery order and the parties’ agreement.
- The court ordered Crown Crafts to conduct a more comprehensive ESI search and production consistent with the operative discovery protocol.
- The court indicated that noncompliance with discovery orders could subject a party to appropriate remedies and sanctions.

## Legal Principles

- A discovery order incorporating an ESI protocol is binding; a producing party may not materially narrow performance below the agreed scope without agreement or court approval.
- A responding party must conduct a reasonable, good-faith ESI search reasonably calculated to locate responsive information under the Federal Rules of Civil Procedure.
- Limiting ESI review to a subset of custodians, or to documents identified only by “obviously relevant” file titles, can be unreasonable when it risks missing responsive ESI.
- Courts may compel renewed or expanded ESI collection and review when a party’s implementation of an agreed protocol is inadequate, and may impose remedies for noncompliance.

## Conclusion

The court enforced the parties’ court-ordered ESI protocol by compelling Crown Crafts to expand and redo its ESI search and production after Crown Crafts unilaterally narrowed the review to selected custodians and “obvious” file titles, falling short of a reasonable, good-faith discovery effort.


BreathableBaby, LLC v. Crown Crafts, Inc., No. 12-cv-0094 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)