SM Kids, LLC v. Google LLC

Background

SM Kids, LLC brought this action against Google LLC, Alphabet Inc., and XXVI Holdings Inc. The dispute concerns a 2008 settlement agreement arising from earlier litigation involving the GOOGLES trademark. The parties submitted a joint letter asking the court to resolve disagreements about electronic discovery, including document-collection dates, custodians, and search terms.

Discovery Positions

SM Kids requested searches beginning January 1, 2008, generally, and January 1, 2005, for requests seeking documents from the earlier litigation and deposition transcripts. SM Kids argued that earlier materials could help show the parties’ understanding of the settlement agreement. Google opposed searches before February 23, 2013, for certain requests and agreed to search from January 1, 2008, for the requests concerning the earlier litigation.

The parties also disputed which custodians should be searched. SM Kids identified Stephen Garchik and Tammy DePaolis as its custodians and asked whether Google would search records belonging to Tim Alger, Pavni Diwanyi, Shimrit Ben-Yair, and Malik Ducard. Google identified six potential custodians and requested that SM Kids disclose the third-party custodians from whom it intended to collect documents.

The parties further disagreed about Boolean and proximity searches, searches involving third-party custodians, the search term “Ganz,” and proposed searches concerning Google’s children’s entertainment offerings, Google Play, and YouTube Kids. Google also questioned SM Kids’ representations about boxes of Stelor documents and possible email or file servers. SM Kids stated that the documents in the boxes had already been collected and produced and that it did not possess a separate Stelor email or file server.

Court’s Rulings

The court resolved the discovery disputes as follows:

- Unless the parties agreed otherwise, document searches would begin no earlier than February 23, 2013. - The court rejected SM Kids’ request to begin the searches for requests 15 and 16 on January 1, 2005, but found Google’s agreed January 1, 2008, start date reasonable. - SM Kids had to disclose its intended third-party custodians to Google by October 30, 2020. - Google had to tell SM Kids by October 30, 2020, whether it agreed to search the records of Tim Alger, Pavni Diwanyi, Shimrit Ben-Yair, and Malik Ducard as custodians. - Based on SM Kids’ counsel’s representations, the court entered no orders at that time concerning the boxes, email server, or file server; Google could ask about those subjects during depositions. - The parties had to continue discussing Boolean searches and searches for third-party custodians and could seek further court intervention if needed. - Both parties had to use “Ganz” as a search term or neither could use it. If both used it and the search produced too many results, they had to discuss ways to reduce the burden. - On proportionality grounds, the court did not require Google to use the four sets of search terms to which it objected.

This was a discovery order rather than a decision on the parties’ underlying settlement-agreement claims. Judge Lorna Schofield issued the order.