Oxbow Carbon & Minerals LLC v. Union Pacific R.R. Co.

322 F.R.D. 1 (D.D.C. 2017)


Ps are five related companies that mine and sell coal and petroleum coke. Ps allege that Ds engaged in anticompetitive conduct from 2004 to 2012 in violation of the Sherman Antitrust Act. Ps believe Ds conspired to (1) fix fuel rates applied to commercial rail freight service above competitive levels through a uniform fuel surcharge and (2) allocate certain markets for coal shipment to each other, granting a monopoly in at least one region of the country. Ps claim that it paid Ds more than $50,000,000 in illegal fuel surcharges as a result of the conspiracy. Ds request that the Court compel Ps' founder, CEO, and principal owner, Koch, as a document custodian whose records will be searched for material responsive Ds' discovery requests. Ds contend that Koch indisputably possesses relevant, unique information responsive to their requests, and argue. Ps contend that the production of his documents would be disproportionately burdensome and duplicative of the documents produced from the search of the nineteen other P document custodians' files. Ds believe that Koch's records contain information that would reveal that market forces-as opposed to Defendants' alleged collusion-contributed to the increasing rail freight costs. Ds assert that their discovery request is proportionate and reasonable in light of the facts of this case and the amount of damages Ps seek. Ps have estimated that adding Koch as a document custodian would result in roughly 130 gigabytes of additional documents to be filtered through the parties' previously-agreed-upon search terms, a process that Oxbow initially estimated would cost $250,000. Ps claim that many of Koch's documents would likely be duplicative of the other custodians' documents or only marginally responsive given. Ps offered to search a random sample of the documents for Ds' keywords. Ps collected 467,614 documents. A vendor searched those documents using the previously-agreed-upon search terms, which yielded 45,639 document hits-82,600 documents in total when including 'families' of documents. The vendor collected a random sample of ten percent of these hits and any associated families-12,074 documents in total-and provided them to Ps for review for privilege and responsiveness. Approximately 1,300 documents (11.67 percent) were responsive to the search terms. The initial processing cost Ps $57,197.95. Ps now estimate that it will cost $85,000 more to process, review, and produce the remainder of Koch's documents for a total cost of $142,000. Ps believe that the results confirm that a complete production of Koch's documents would be an unnecessary burden and expense, particularly in light of the documents' low responsiveness rate to the search terms. Ds look at the same results and claim this represents proof of the existence of relevant and unique documents in Koch's records. Ds estimate the total number of responsive documents to be 10,000. This amount is roughly equivalent to the total number of documents produced by each of Ps' other custodians. Ds oppose Ps’ request for cost-sharing because Ps’ refusal to share the data from sampling in order to tailor the search terms and to have an informed discussion to make them more effective is disingenuous. Ds oppose Ps' request for cost-sharing and seek a ruling on their motion to compel.