The court GRANTS Plaintiff Michael Strathmann’s motion to enlarge time and to compel further discovery responses to Plaintiff’s requests for production served on 11/1/13.

The court proposes to extend the discovery and motion cut-off dates by 30 days, or for a different period to be decided at the hearing.

Within 10 calendar days, Defendants are ordered to: (a) personally serve a list of search terms used to locate documents responsive to Plaintiff’s RFP’s, and (b) personally serve a list of custodians and other document sources from which they collected documents responsive to Plaintiff’s RFP’s.

Within a time period to be determined at the hearing, Defendants are ordered to complete the search of backup files responsive to document requests 3-8, 10, 18, 22, and 32.

Time shall run from service of notice of the ruling.

The court DENIES Plaintiff’s request for monetary sanctions on the ground that the notice of motion fails to seek sanctions in a particular amount and the caption of the notice of motion fails to properly notify Defendants of Plaintiff’s request for monetary sanctions. Even assuming the notice were adequate, the court exercises its discretion to decline to award sanctions.

There is little California case law regarding electronically stored information, so California courts may look to federal law as persuasive authority. (Ellis v. Toshiba America Info. Systems Inc. (2013) 218 Cal.App.4th 853, 861 n.6 [citing Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1288].)

The court may compel Defendants to disclose search terms used and the sources searched. (Apple Inc. v. Samsung Electronics Co. Ltd, 2013 WL 1942163 at *3 [third-party Google’s “failure to promptly disclose the list of employees or former employees whose emails it proposed to search and the specific search terms it proposed to be used for each individual violated the principles of an open, transparent discovery process.”]; Cf. Am. Home Assurance Co. 2013 WL 4875997 [court could have ordered additional searches, but for moving party’s failure to propose additional search terms].) The work product privilege does not apply to search terms. (FormFactor Inc. v. Micro-Probe Inc., 2012 WL 1575093 (N.D. Cal. 5/3/12); Apple v. Samsung, 2013 WL 1942163 at *2 (N.D. Cal. 5/9/13.)

Plaintiff makes a prima facie showing that Defendants’ failure to produce certain categories of responsive document for certain time periods suggest a reasonably likelihood that Defendants’ search terms or search efforts may have been inadequate. In Opposition, Defendants present assurances that their searches have been diligent and complete. But Plaintiff is entitled to specific assurances that demonstrate Defendants’ diligence.

Plaintiff Strathmann served his first set of requests for production on Acacia and Combimatrix on 11/1/13. Plaintiff makes a prima facie showing that the RFP’s sought relevant documents. Although Defendants represent that they have produced all relevant non-privileged documents, Plaintiff makes a prima facie showing that there is a reasonable probability that all responsive documents may not have been located and produced, for several reasons:

First, Acacia has not produced any separate documents under its own production numbers, other than checks from Dr. Montgomery to Acacia. (Goldfard Decl. at ¶ 17.)

Second, Defendants represent that there are no internal Acacia or CombiMatrix documents concerning the claims made to National Union in the fall of 2002, which seems unlikely. (Goldfarb Decl. at ¶ 19.)

Third, although the 3/11/14 deposition testimony of Scott Burrell suggests that CombiMatrix routinely deleted all emails of former employees, such as Dr. Kumar and Dr. Montgomery, defendants have not yet completed relevant searches of certain back up tapes. (Goldfarb Decl. at ¶¶ 20-26.)

Fourth, Defendants produced only a single privilege log that does not differentiate between Acacia and CombiMatrix. The privilege log identifies only 1 document for the period from 1995 to 2/5/01 and only 3 documents for the entire year of 2003, when Defendants were making claims on National Union of over $20 million. (Goldfarb Decl. at ¶¶ 21-26, Ex. 11.)

Fifth, Plaintiff represents that the responsive documents produced are completely devoid of any correspondence to or from Dr. Kumar, any correspondence to or from Dr. Montgomery, any internal correspondence concerning Nanogen or National Union, and any documents from Acacia concerning National Union. (Memo in Support at p. 7.)

Defendants note that Plaintiff is seeking documents from 9-12 years ago, so it is not surprising that few documents have been located. In particular, CombiMatrix moved from Mulkiteo, Washington to Irvine in 2010, resulting in the loss of records previously on the servers. But even if the lack of responsive documents is justifiable, Plaintiff is still entitled to reasonable assurances that appropriate searches have been conducted.

Defendants argue that the motion is improper because it does not identify particular requests for which Plaintiff seeks additional documents. But this misses the point that Plaintiff is entitled to know what searches have been conducted for documents responsive to all of the RFP’s. And Plaintiff does specifically seek supplemental responses to RFPs 3-8, 10, 18, 22, and 32 as to the backup tapes.

Defendants argue that during his deposition, CombiMatrix CFO Scott Burrell did disclose what search terms were used. But this did not purport to be a complete disclosure of all search terms employed, document custodians, or document sources.

Plaintiff shall serve notice of this ruling.