ADT LLC, and ADT US HOLDINGS, INC., Plaintiffs, v. VIVINT, INC., Defendant Case No. 17-cv-80432-MIDDLEBROOKS United States District Court, S.D. Florida Entered on FLSD Docket December 01, 2017 Counsel Aaron K. Kirkland, Pro Hac Vice, Charles C. Eblen, Pro Hac Vice, Jason R. Scott, Pro Hac Vice, Shook, Hardy & Bacon LLP, Kansas City, MO, Daniel E. Rohner, Pro Hac Vice, Richard G. Sander, Pro Hac Vice, S. Kirk Ingebretsen, Pro Hac Vice, Eric J. Hobbs, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Denver, CO, Charles Sanders McNew, McNew P.A., Boca Raton, FL, for Plaintiffs. Matthew A. Steward, Timothy R. Pack, Pro Hac Vice, Clyde Snow & Sessions, Salt Lake City, UT, Anthony Lee Bajoczky, Jr., Eugene Dylan Rivers, Martin B. Sipple, Pamela Cothran Marsh, Ausley McMullen, P.A., Tallahassee, FL, Ashley A. Sawyer, Akerman Senterfitt, Fort Lauderdale, FL, Bryan Thomas West, Lawrence Dean Silverman, Sandra Jessica Millor, Akerman LLP, Miami, FL, Carrie Ann Wozniak, David Storrs Wood, Akerman Senterfitt, Orlando, FL, for Defendant. Middlebrooks, Donald M., United States District Judge ORDER ON PLAINTIFFS’ MOTIONS TO COMPEL *1 THIS CAUSE comes before the Court on Plaintiffs ADT LLC, and ADT US Holdings, Inc.’s (collectively “ADT”) Motion to Compel Production of Email Files, filed on October 26, 2017 (“Motion to Compel Emails”). (DE 152). On November 9, 2017, Defendant Vivint, Inc. (“Vivint”) filed a response (DE 161), to which ADT replied on November 13, 2017 (DE 166). On November 7, 2017, ADT filed a Motion to Compel Compliance with DE 115. (DE 156). On November 21, 2017, Vivint filed a response (DE 173), to which ADT replied on November 22, 2017 (DE 174). I. Motion to Compel Emails ADT moves for an order compelling Vivint to produce email files responsive to ADT's Document Request 26. (DE 152). Document Request 26 seeks “all e-mails referencing takeovers or switchovers of alarm accounts from January 2013 to date.” (DE 152 at 4). Vivint responded that the request was overly broad, unduly burdensome, and not proportional to the needs of the case, and that the terms “takeovers” and “switchovers” are vague and ambiguous. (Id.) Vivint further objected that the request was “not limited to takeovers or switchovers from ADT, nor Plaintiffs’ claims that Vivint used improper sales practices in soliciting certain ADT customers.” (Id.). Finally, Vivint noted that an initial search of its employees’ email files for the words “takeover” or “switchover” resulted in “close to 1 million hits.” (Id.). In its response to ADT's Motion, Vivint states that on November 2, 2017, after ADT filed its Motion to Compel, Vivint produced “approximately 8,700 pages” of emails responsive to Document Request 26. (DE 161 at 4). ADT replies that this production is unsatisfactory for the following reasons: (1) the documents were produced pursuant to overly-narrow search terms; (2) the emails that were produced were stripped of their metadata; and (3) Vivint refused to produce any responsive emails sent or received by two Vivint in-house attorneys on the basis of privilege without providing a privilege log. (DE 152). First, ADT objects to the search Vivint used to locate responsive emails. As stated above, Vivint's initial search for the words “takeover” and “switchover” resulted in “close to 1 million hits.” (DE 152 at 4). The Parties engaged in numerous discussions and conferences to try to limit the results. (DE 152). Ultimately, Vivint “ran searches for ‘ADT’ and a separate search for the names of the 900+ customers [ADT] identified in [its] Sixth Amended Initial Disclosures.” (DE 152-8 at 3). ADT argues that these searches are inadequate as ADT is seeking evidence of “Vivint's policies and practices with respect to takeover sales” which “are not cabined to Vivint slams of ADT customers.” (DE 152 at 6). Vivint responds that there is “nothing untoward when consumers ‘switchover’ service provides—for any service.” (DE 161 at 6). Accordingly, while some emails that contain the word “switchover” could contain evidence related to ADT's claims or defenses in this case, ADT's request for nearly 1 million emails that contain the word “switchover” is overbroad. I find that Vivint's searches for “ADT” and the names of all customers identified by ADT was an adequate compromise. *2 Second, ADT sought responsive emails from “five specific document custodians, and other custodians to be identified by Vivint that would likely have responsive documents.” (DE 152 at 2). Vivint informed ADT that it “took out custodians Wilcox and Lindquist, and emails they sent or received, as they are in-house attorneys and therefore their communications are privileged.” (DE 152-8 at 3). The fact that an email was sent or received by an attorney does not automatically render the email privileged. “To invoke the attorney-client privilege, a party must demonstrate that there was: (1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3) made for the purpose of obtaining or providing legal advice.” United States of America v. Construction Products Research, Inc., 73 F.3d 464 (2d Cir. 1996) (citing Fisher v. United States, 425 U.S. 391, 403 (1976)). To the extent Vivint claims specific emails are privileged, it must comply with Rule 26(b)(5) of the Federal Rules of Civil Procedure, which provides that: [w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5). Therefore, Vivint is required to produce all documents located in Mr. Wilcox's and Mr. Lundquist's email files responsive to the search it ran for the other custodians; however, to the extent Vivint claims that any particular responsive emails are privileged, Vivint must produce a privilege log to that effect. Finally, ADT argues that Vivint's production of the emails was unsatisfactory in that Vivint did not provide the metadata along with the emails. (DE 152). ADT argues that at this stage in the proceedings, it will be difficult to sort through the emails without metadata. Vivint responds that ADT did not request the metadata in its initial request for production. Vivint then argues that production of the emails without metadata is consistent with Rule 34 of the Federal Rules of Civil Procedure, which provides that: Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (ii) [i]f a request does not specify the form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E). The 2006 Advisory Committee note to the rule states that: The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. Fed. R. Civ. P. 34 cmt. It appears that Vivint produced the emails as PDFs. (DE 166 at 7). ADT represents that the form in which the emails were produced substantially impedes its review of the emails. (DE 166 at 7). Further, Vivint offers no reason why producing the emails in their native format would be burdensome. Accordingly, Vivint is ordered to produce all emails previously produced in response to Document Request 26 in the form in which those emails are ordinarily maintained. II. Motion to Compel Compliance with DE 115 *3 ADT argues that Vivint failed to comply with my Order Compelling Production (DE 115) in the following ways: (1) Vivint has withheld responsive documents on the basis of privilege without producing a privilege log, and (2) Vivint failed to produce a complete copy of a 2015 Assurance of Voluntary Compliance entered into with the Florida Attorney General. (DE 156). In its response, Vivint represents that it produced both categories of documents after ADT filed the Motion. (DE 173 at 2). ADT replies that Vivint is continuing to withhold undisclosed documents on privilege grounds but that “ADT still has no idea what additional documents Vivint is withhelding [sic], or whether Vivint had any basis for withholding them. (DE 174 at 1). Because Vivint represents that it has produced all responsive documents, ADT's Motion to Compel Compliance is denied as moot. However, as explained above, to the extent Vivint is withholding documents responsive to my Order Compelling Production (DE 115) on the basis of privilege, it must produce a privilege log to that effect. Accordingly, it is hereby ORDERED AND ADJUDGED that ADT's Motion to Compel Emails (DE 152) and ADT's Motion to Compel Compliance with DE 115 (DE 156) are GRANTED IN PART and DENIED IN PART. Vivint is compelled to produce all emails previously produced in response to Document Request 26 in the form in which those emails are ordinarily maintained by December 5, 2017. Additionally, Vivint is compelled to produce a privilege log reflecting all emails responsive to Document Request 26 and all documents responsive to my Order Compelling Production (DE 115) that it is withholding on the basis of privilege by December 5, 2017. DONE AND ORDERED in Chambers in West Palm Beach, Florida, this 29 day of November, 2017.