## Facts

- Consumers filed a federal antitrust action alleging that the National Association of Music Merchants, Musical Instruments and Equipment (NAMM) and industry participants coordinated restraints on competition in the musical-instruments market.
- After the pleading was challenged, the district court permitted limited, targeted discovery aimed at obtaining information necessary for plaintiffs to attempt to plead a viable Sherman Act § 1 conspiracy claim.
- As part of that limited discovery, plaintiffs sought electronically stored information (ESI) from NAMM’s databases.
- At the beginning of the ESI process, NAMM offered to meet and confer with plaintiffs about the keyword list that would be used to search for relevant, discoverable ESI.
- Plaintiffs declined NAMM’s early offer to negotiate search terms.
- NAMM ran an initial keyword search using a set of terms that later appeared to be too narrow.
- NAMM then agreed to expand the keyword list and performed a second, broader search at significant cost.
- The second search generated and produced a substantial amount of additional ESI, but plaintiffs remained dissatisfied.
- Plaintiffs requested a third search that would add abbreviations and acronyms they claimed were commonly used in communications among NAMM’s members and within the industry.
- NAMM refused to run the third search, citing the expense of another full search and arguing that adding acronyms and abbreviations was unlikely to produce a meaningful amount of new, relevant ESI.
- Plaintiffs moved to compel NAMM to conduct the third keyword search.

## Issues

1. Whether the court should compel NAMM to run a third ESI keyword search adding abbreviations and acronyms, given that plaintiffs declined to confer on search terms at the outset and NAMM had already completed two rounds of searching at substantial cost.

## Decision

- The court denied plaintiffs’ motion to compel a third round of ESI searching using additional abbreviation and acronym terms.
- The court relied on the history of the parties’ search-term process, including plaintiffs’ earlier decision not to meet and confer and NAMM’s completion of two searches (the second expanded and expensive).
- The court found plaintiffs had not shown that the added acronym/abbreviation terms were likely to yield enough non-duplicative, relevant material to justify the added burden and expense, particularly given the limited discovery purpose tied to potential amendment of the pleadings.

## Legal Principles

- Under Fed. R. Civ. P. 26(b)(2)(C), a court must limit discovery that is unreasonably cumulative or duplicative, where the requesting party had ample earlier opportunity to obtain the information, or where the burden and expense outweigh the likely benefit.
- In disputes about ESI keyword searching, courts may deny repeat or expanding searches when the moving party cannot show a concrete reason to believe the new terms will produce significant, relevant, non-duplicative material.
- A party seeking additional search iterations should be prepared to justify them with more than general statements about how people might communicate; timing and prior opportunities to shape the search methodology matter.
- When discovery is authorized for a narrow purpose (such as supporting an amended pleading after dismissal), that limited scope is a key limit when weighing the reasonableness of additional ESI search demands.

## Conclusion

The court refused to order a third ESI keyword search adding acronyms and abbreviations because plaintiffs had bypassed early cooperation on search terms, NAMM had already conducted two searches including an expanded second search at substantial cost, and plaintiffs did not show that another round was likely to produce enough new relevant material to justify the additional burden within the confined discovery allowed to support potential repleading.


In re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, 2011 WL 6372826 (2011)