Brooks v. Thomson Reuters Corporation

Background

The case concerns CLEAR, an online platform that provides access to a database combining public and non-public information about millions of people. The parties had previously agreed to some limits on Plaintiffs’ access after an earlier discovery dispute. They then submitted a second discovery letter concerning additional access conditions.

Terms of service

The parties disagreed about whether CLEAR’s customer terms of service would govern Plaintiffs’ use. Those terms included limits requiring information obtained from CLEAR to be used only once and for internal business purposes, as well as a requirement that users assist Thomson Reuters with litigation related to access.

Plaintiffs proposed that the terms apply only if they were consistent with the parties’ agreement, the protective order, other court orders, and the purpose of Plaintiffs’ use of CLEAR for civil discovery. Thomson Reuters agreed to exceptions for the parties’ agreement and court orders but opposed the additional exception based on the purpose of the use.

The court found Plaintiffs’ proposed purpose-based exception vague and likely to create disputes. It ordered that the terms of service apply unless they conflict with the parties’ agreements or an order entered in the case. The court noted that the parties could agree to other terms.

Screen recordings

The parties also disputed whether Plaintiffs had to record their CLEAR usage and automatically produce those recordings to Thomson Reuters. Plaintiffs argued that recording the process could reveal protected attorney work product—the materials and mental processes developed in preparing for litigation—because Plaintiffs were determining how CLEAR worked and what information was available about potential class members.

The court required Plaintiffs to make screen recordings. Based on Thomson Reuters’s description of CLEAR, users shape search results and custom reports by entering search queries, selecting results, and taking additional steps. The court concluded that, without recordings, it might be impossible to determine fully how Plaintiffs obtained particular results, especially because the searchable data could change.

The court declined to require automatic production of all recordings. It found a substantial risk that the recordings could reveal protected attorney work product, including the search terms used, the results selected, and the additional steps taken. The court stated that production might later be warranted if an expert used a recording, but it was premature to require production of all recordings without a showing of substantial need.

Usage logs

Thomson Reuters sought automatic access to usage logs that it generated in the ordinary course. It argued that the logs were relevant to understanding search results and ensuring compliance with the parties’ access agreement. Plaintiffs objected on attorney-work-product grounds.

The court denied automatic access to the logs because it was unclear what they contained and they might reveal search terms and the steps used to create custom reports. The court rejected Thomson Reuters’s argument that work-product protection was waived because the logs were already in Thomson Reuters’s possession. The court compared that argument to saying that an attorney’s Westlaw searches could not be work product merely because they occurred on a legal database owned by someone else.

The court also found that Thomson Reuters had not shown the substantial need required to overcome qualified work-product protection. Its argument that its counsel should be able to review its own business-record logs was not enough. The ruling did not prevent Thomson Reuters from later showing a substantial need.

Number of transactions

Plaintiffs requested permission to conduct 500 transactions, including searches and reports. The court found 500 searches appropriate because the parties had already agreed to a three-week access period. The court reasoned that one search would not necessarily produce one report used in the case, and that multiple search terms and steps might be needed to generate a single relevant report.

The court therefore declined to impose a further limit that could make Plaintiffs’ use of CLEAR meaningless.

Proposed order and disposition

Plaintiffs stated that they were submitting a proposed order concerning permissible use of the platform and that Thomson Reuters would not oppose it once the dispute was resolved. The court directed Plaintiffs to resubmit the document as a stipulation and proposed order rather than as a standalone proposed order, and stated that it would not sign the standalone version.

The order disposed of Docket No. 109, the discovery letter.