Plaintiffs New Wave Energy Corp. (New Wave), John Ludtka and Nicholas Jerge have moved to compel discovery from defendants Energymark, LLC (Energymark) and Kevin Clough and defendants have cross-moved for an order of protection. In an order, entered January 3, 2020, this court granted in part and denied in part plaintiff's prior motion to compel discovery.

As the Court of Appeals wrote in Forman v Henkin (30 NY3d 656, 661 [2018]):

"Disclosure in civil actions is generally governed by CPLR 3101 (a), which directs: [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. We have emphasized that [t]he words, material and necessary, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]). A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary'—i.e., relevant . . . The right to disclosure, although broad, is not unlimited." [internal quotation marks omitted].

In addition to the material protected from disclosure by CPLR 3101 (b) and (c), the Court "has recognized that 'litigants are not without protection against unnecessarily onerous [*2]application of the discovery statutes. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party' " (id. at 662; quoting Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]; see also CPLR 3103 [a]).

This court rejects plaintiffs' contentions that everything that has transpired since the prior discovery order was simply an effort to enforce that order. Also, this court rejects plaintiffs' contention that everything it is seeking constitutes "matter material and necessary in the prosecution or defense of [this] action" (CPLR 3101 [a]).

While the parties seem for the most part to be able to agree on the terms used for searching electronic documents, expanding the search to include documents maintained by 12 custodians based solely on the corporate structure and unspecified communications they have acquired is insufficient to justify what is overly broad, unduly burdensome, and likely to be extremely expensive. Likewise, plaintiff's contention that defendants must disclose every document retrieved using the agreed upon search terms without being screened for relevance or privilege is without merit. It is self-evident that, for example, the search term "Kevin Clough," an employee of Energymark, will return hundreds and likely thousands of documents that are completely irrelevant to this action. Similarly, the search term "New Wave" will likely retrieve documents completely unrelated to the alleged defamatory statements. Search terms merely provide a tool for searching electronically stored documents for material that may be responsive to a discovery demand.

The suggestion that every document found using a search term must be produced without being screened for relevancy and privilege is simply nonsensical inasmuch as every search of a database is going to produce results that are both relevant and irrelevant to the purpose of the search, with the latter being much more likely than the former. It is also unreasonable to suggest that searching the records of 12 custodians is reasonable inasmuch as plaintiffs have failed to "satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary' " (Forman v Henkin, 30 NY3d at 661). Moreover, in balancing the plaintiff's discovery needs against the burdens imposed on defendants, that balance was properly struck by this court's prior order that granted in part and denied in part plaintiff's motion to compel discovery.

Lastly, plaintiffs have also not established that defendants failed to identify with sufficient detail that redactions made in disclosed documents were properly based on attorney-client privilege. At this point, there is neither a request nor a basis provided for an in camera review.

Based on the foregoing, plaintiffs' motion to compel is denied and defendants' cross-motion for a protective order is granted. Submit order on notice.