Optronic Technologies, Inc. v. Ningbo Sunny Electronic Co., Ltd.

Background

The parties submitted a joint discovery dispute concerning Ningbo Sunny’s production of documents requested by Optronic after judgment. They disputed whether Ningbo Sunny had produced all responsive documents and whether its production complied with the court’s earlier order governing electronically stored information (ESI), meaning electronic documents and related data.

Issues and rulings

Documents involving Peter Ni

Optronic argued that Ningbo Sunny should have produced documents sent to or received from Peter Ni, Ningbo Sunny’s CEO, because Ningbo Sunny identified him as the person most knowledgeable about its discovery responses. Ningbo Sunny responded that Mr. Ni was one of the custodians whose documents had already been searched and produced.

The court reviewed the 31 document requests and concluded that most sought company-level financial and transactional documents, rather than documents addressed to or from an individual. Although some requests sought communications, the court was not persuaded that Mr. Ni’s role as CEO or his designation as the person most knowledgeable required a conclusion that Ningbo Sunny had withheld responsive documents.

Completeness of the production

Optronic argued that third-party discovery showed Ningbo Sunny had deliberately withheld responsive documents, including January 2020 correspondence with Celestron. Ningbo Sunny responded that the requests were served on December 31, 2019, and therefore did not cover January 2020 documents.

The court stated that the parties should have resolved this issue without court assistance. Because Optronic had not identified an alternative meaning for “the present,” the court ordered the parties to promptly confer about a reasonable cutoff date for Ningbo Sunny’s collection and production. The cutoff date had to be late enough to include documents reflecting post-judgment activities that reasonably could affect Optronic’s ability to collect the judgment. The parties had to advise the court in writing of their agreed cutoff date by March 9, 2020.

Format of the production

Optronic argued that Ningbo Sunny’s production omitted required metadata and violated the parties’ court-approved ESI protocol. The ESI order generally required ESI to be produced as single-page TIFF image files with data load files containing specified metadata. It allowed spreadsheets, personal databases, and multimedia audio or video files to be produced in native format, with a load file containing NativeFileLink information. Other types of documents could not be produced in native format without first conferring with the opposing party.

The court found that the parties’ submission did not make clear whether Ningbo Sunny’s use of native format complied with the ESI order. If Ningbo Sunny had produced in native format documents that the order required to be produced as TIFF files with the specified metadata, Ningbo Sunny had to correct its production. Any documents properly produced in native format still had to comply fully with the ESI order. The amended production was due March 11, 2020.

Counsel’s role and search declaration

Optronic argued, without citing authority, that the court should require Ningbo Sunny’s U.S. counsel to direct and control the document production. Ningbo Sunny said its counsel had explained the production requirements and guided the collection, which was conducted with assistance from Chinese counsel.

The court explained that counsel has significant responsibility for ensuring compliance with discovery obligations, including making a reasonable inquiry before certifying a discovery response. But the court was not persuaded that Optronic’s complaints about Mr. Ni’s documents and the Celestron correspondence established that counsel had failed to take appropriate measures. Rather than ordering counsel to direct and control every aspect of the production, the court required Ningbo Sunny to file a declaration from a person with knowledge describing specifically how it searched for documents responsive to Optronic’s requests. That declaration was due March 11, 2020.

Disposition

The court resolved the discovery dispute without a hearing. It did not require additional production based solely on the arguments about Mr. Ni’s documents, ordered the parties to agree on a collection cutoff date, required correction of the production if it did not comply with the ESI order, and required Ningbo Sunny to submit the search declaration.