In Healthedge Software, Inc. v. Sharp Health Plan, No. 19-cv-11020-ADB (D. Mass. May 6, 2021), Massachusetts District Judge Allison D. Burroughs, stating that “[t]his case is a prime example of the discovery issues that can arise when the parties (and their counsel) fail to engage in cooperative planning regarding ESI” granted discovery requests for both parties in their ongoing discovery disputes.

Case Background

In this case regarding a contract dispute over software development by the plaintiff which sought a declaratory judgment that it complied with its obligations under various agreements with the defendant (who, in turn, countersued), the defendant identified a number of purported deficiencies with the plaintiff’s discovery practices, including: (1) engaging in a flawed ESI collection without prior consultation with the defendant; (2) lodging boilerplate relevance, burden, and vagueness objections; (3) withholding its source code as a confidential trade secret despite a protective order; and (4) inappropriately asserting attorney work product privilege.  In turn, the plaintiff maintained that it had complied with its discovery obligations and countered that the defendant had failed to be transparent concerning its own ESI collection.

Judge’s Ruling

Judge Burroughs granted discovery requests for both parties, as follows:

• “With respect to HealthEdge’s documents”, Judge Burroughs ordered the defendant to “provide HealthEdge with a proposed collection and search protocol, including a list of custodians and search terms. In crafting this proposed protocol, the Court encourages Sharp to keep in mind that requiring HealthEdge to review hundreds of thousands of documents in this litigation is likely to be unduly burdensome and/or disproportional to the needs of the case…Then, depending on how many hits are generated using Sharp’s proposed protocol, HealthEdge shall either review the hits (and produce responsive, non-privilege documents) or make a counterproposal.”
• “With respect to Sharp’s documents”, Judge Burroughs ordered the defendant to “promptly disclose to HealthEdge (1) which custodians’ documents were collected and (2) precisely how it filtered those documents to arrive at its proposed review universe (i.e., date ranges, search terms, de-duping methods, etc.). Sharp’s argument that its search terms are protected by the attorney work product privilege is unavailing…If HealthEdge is satisfied with Sharp’s collection and proposed review universe, Sharp shall review the documents and produce those that are responsive and non-privileged. If HealthEdge believes Sharp’s collection and/or filtering methodology was deficient, the parties shall engage in good faith negotiations to agree upon a collection and review protocol (following the general blueprint described above).”
• With regard to the plaintiff’s “generalized” objections, Judge Burroughs stated: “the Court notes that ‘[b]oilerplate generalized objections are inadequate and tantamount to not making any objection at all.’…Accordingly, to the extent HealthEdge intends to stand by its objections and withhold documents based on relevance, burden, and/or vagueness, it must articulate precisely why a particular discovery request calls for irrelevant information or uses vague terms and/or why responding to it would be unduly burdensome…Additionally, if HealthEdge has asserted an objection to a given request for production but has not actually withheld any documents on that basis, it should make that fact clear to Sharp.”
• With regard to the plaintiff’s source code, Judge Burroughs stated: “As to HealthEdge’s source code, HealthEdge has failed to address why the Confidentiality Stipulation governing disclosure of confidential information in this case…is insufficient to protect its valuable proprietary information…Given Sharp’s allegation that HealthEdge’s software was deficient…HealthEdge’s code is relevant to this litigation. Accordingly, HealthEdge must produce its source code. If it believes that the existing Confidentiality Stipulation is insufficiently robust, the Court encourages the parties to negotiate an amendment providing additional protection.”

In addition to granting discovery requests for both parties, Judge Burroughs did deny (for now) the defendant’s request regarding the plaintiff’s assertion of the attorney work product privilege, stating: “Although HealthEdge must eventually respond to these requests, at this point, the requests are premature, particularly given that HealthEdge has not yet reviewed its own documents (or received Sharp’s document production). HealthEdge is therefore not in a position to exhaustively identify all documents supporting its claims and contentions. Under Federal Rule of Civil Procedure 33(a)(2), the Court may order that such discovery requests need not be responded to until later in the litigation…Thus, Sharp may renew these requests for production at the close of discovery, at which point HealthEdge shall respond.”

So, what do you think?  Are you surprised that the Court granted the discovery requests for both parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

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