Tradeshift, Inc. v. BuyerQuest, Inc.

Background

Tradeshift alleged that BuyerQuest interfered with Tradeshift’s June 2019 contract to provide software and services to Smucker. According to Tradeshift, BuyerQuest was its subcontractor, breached contractual and good-faith obligations, and secretly worked to persuade Smucker to end Tradeshift’s contract and enter a new contract with BuyerQuest for all of the work. Tradeshift separately sued Smucker in New York for breach of contract.

Tradeshift claimed that BuyerQuest’s chief executive, Jack Mulloy, communicated with Smucker’s Jason Barr about the alleged interference. The discovery dispute concerned emails between Mulloy and Barr sent from their personal email accounts. BuyerQuest said it searched Mulloy’s Gmail account and found one responsive email. Smucker produced two December 12, 2019 emails between Mulloy and Barr in the New York case, but BuyerQuest had not produced that exchange in this case. The court described one of those emails as highly relevant because Mulloy criticized Tradeshift and stated that he wanted to establish a direct relationship between BuyerQuest and Smucker.

Motion to quash the Google subpoena

BuyerQuest moved to quash, or block, Tradeshift’s subpoena to Google. The subpoena sought non-content information showing dates when Mulloy’s Gmail account sent or received emails to or from Barr’s email accounts, including deleted emails.

The court denied the motion to quash. It acknowledged that the subpoena overlapped with information Tradeshift had requested from BuyerQuest, but found that it was not duplicative of the information BuyerQuest had actually produced. The court reasoned that the subpoena was intended to identify the gap between the requested information and the production. It found the subpoena narrowly tailored, imposed no burden on BuyerQuest or Mulloy, and noted that BuyerQuest could not object to a burden on Google because it lacked standing to do so. The court also noted that there was no indication Google considered the subpoena burdensome.

Motion to compel

Tradeshift separately moved to compel BuyerQuest to produce emails that Mulloy sent or received from his personal email account to Barr’s personal account. Tradeshift specifically asked that BuyerQuest’s lawyers, rather than Mulloy, review the personal emails for responsive documents.

The court granted the motion to compel. BuyerQuest had acknowledged agreeing to search Mulloy’s personal email for correspondence with Barr, and the court held that the agreement was binding. The court also rejected BuyerQuest’s argument that emails involving company business were outside its possession, custody, or control merely because Mulloy used a personal account. It explained that allowing such an approach would make it too easy for executives to hide evidence and undermine the discovery rules.

The court further held that BuyerQuest’s counsel had to review Mulloy’s emails. The court relied on the rule requiring counsel to certify that a document production is complete and found that Mulloy could not reasonably be expected to search his own emails for evidence of alleged wrongdoing. The court considered counsel review particularly important because Mulloy’s earlier search had not found the December 12 email exchange. It also found that a focused review for messages involving specific people would not be unduly invasive of Mulloy’s privacy.

Disposition

Judge Thomas S. Hixson denied BuyerQuest’s motion to quash the subpoena to Google and granted Tradeshift’s motion to compel.