ALLERGAN, INC., ALLERGAN PHARMACEUTICALS IRELAND, UNLIMITED COMPANY, ALLERGAN USA, INC., AND ALLERGAN SALES, LLC Plaintiffs, v. REVANCE THERAPEUTICS, INC. Defendant Civil Action No. 3:23-cv-00431 United States District Court, M.D. Tennessee, Nashville Division Filed February 12, 2025 Presnell, Todd, Special Master ORDER OF THE SPECIAL MASTER RESOLVING PLAINTIFFS' RENEWED MOTION TO COMPEL PRODUCTION OF CERTAIN DOCUMENTS *1 This case comes before the Special Master on Plaintiffs' Renewed Motion to Compel Production of Certain Documents (ECF 220) (the “Motion”). Upon due consideration of the brief in support (ECF 215), the response in opposition (ECF 230), the reply in support (ECF 231), the relevant position statements of the parties (ECF 213; ECF 222), and all the relevant exhibits the parties submitted, the Special Master grants the Motion in part and denies the Motion in part. I. General Background This is a trade secrets misappropriation case. Two classes of cosmetic products are at issue: (1) biologic therapeutics employing botulinum neurotoxin (“BoNT”) and (2) dermal fillers. Plaintiffs (various entities doing business under the “Allergan” trade name)[1] allege that Defendant Revance Therapeutics, Inc.[2] misappropriated trade secrets related to Plaintiffs' popular products Botox (a BoNT therapeutic) and Juvéderm (a dermal filler). See, e.g., Compl. (ECF 1) ¶ 1. Defendant allegedly accomplished this misappropriation by hiring Allergan employees and, presumably, encouraging them to take Plaintiffs' trade secrets with them. See, e.g., id. ¶¶ 7–8, 10, 75, 87. As a result of this alleged misappropriation, Plaintiffs claim that Defendant developed and obtained regulatory approval for a BoNT product competitive with Botox—Daaxify—faster than it otherwise would have (assuming it would have been able to at all). See, e.g., id. ¶ 127. Similarly, Defendant is allegedly using Allergan trade secrets to develop a “Botox biosimilar”[3] product that would also compete with Botox. See, e.g., id. ¶¶ 54–65. Plaintiffs further allege that Defendant has misappropriated Allergan trade secrets in marketing its “RHA Collection” of dermal filler products, which compete with Plaintiffs' Juvederm dermal filler product. See, e.g., id. ¶¶ 66–68. In particular, Plaintiffs allege that Defendant has misappropriated the following trade secrets: (i) characterization data concerning the Botox drug substance; (ii) the Botox Reference Standard; (iii) the critical reagents, standard operating procedures, protocols, and data associated with Allergan's CBPA technologies; (iv) Allergan's strategies and techniques to manufacture Botox, such as those described in confidential Botox regulatory filings relating to cell banks, upstream and downstream processes, storage conditions, finish-and-fill steps, and related data; (v) regulatory strategies and best practices; (vi) data regarding Allergan's customers for Botox and/or Juvéderm, including market data, preferences, contacts, buying history, confidential sales representative success rates, territories, identities, and related information; (vii) marketing strategies for Botox and Juvéderm; (viii) Allergan's past, current, and future commercial and regulatory plans concerning Botox and/or Juvéderm; and (ix) strategies to compete in the marketplace, including against Revance's Daxxify and RHA products. *2 Id. ¶ 34. In response to a motion to dismiss, the Court held that—at least at the pleading stage—Allergan properly alleged each of these sub-categories to be trade secrets worthy of trade secret protection. See ECF 69 at 29–35. No party has moved for summary judgment to definitively resolve the trade secret status of any of these sub-categories. Discovery in this case has been lengthy. The parties have been conducting discovery pursuant to an agreed Joint Discovery Plan (ECF 90; ECF 223), which provides a framework for, among other things, the production of electronically stored information (“ESI”).[4] Despite the parties' agreement on that basic framework, various discovery disputes have ensued. On November 15, 2024, the parties jointly moved the Court to “appoint a discovery special master to resolve discovery disputes,” “[g]iven the number of discovery disputes currently pending before the Court and the number of disputes expected to be raised in the future based on the parties' discussions.” ECF 271 ¶ 6. The Court granted that request on November 18, 2024, stating that a special master would be appointed to rule on “all discovery matters currently pending before the Court, and all future discovery disputes.” ECF 275. On December 11, 2024, the Court appointed the undersigned as Special Master. ECF 292. II. Issues Raised by the Motion The Motion concerns perceived deficiencies in Defendant's response to four categories of Plaintiffs' discovery requests: Category 1 (RFP No. 18): Allergan's confidential and trade secret documents in Revance's possession. Category 2 (RFP No. 26 and ROG No. 5): Communications related to Revance's efforts to solicit Allergan customers. Category 3 (RFP Nos. 37 and 69): Revance's communications with its proposed Botox Biosimilar collaborator (Viatris) and commercial agreements with third parties. Category 4 (RFP Nos. 38, 46, 50, and 98): Documents and communications pertaining to the development and manufacture of Revance's Daxxify and proposed Botox Biosimilar products, and Revance's cell-based potency assay. See Br. in Supp. of Mot. (ECF 215) at 1. Plaintiffs filed a prior motion to compel regarding these categories, which the Court denied because “it appear[ed] to the Court that the Parties ha[d] not conferred as required.” ECF 189 at 4. After the meet-and-confer process, the following disputes remain: (1) The proper search terms and custodians that should apply to Defendant's searches of ESI in pursuit of documents responsive to Categories 1 and 4. (2) Whether Defendant should be compelled to produce documents or substantive interrogatory answers in response to Category 2. (3) The date on which Defendant should complete production of documents responsive to Categories 3 and 4. III. Discussion As discussed in more detail below, the Special Master holds that (1) the ESI search terms Defendant proposes shall be modified, but not to the full extent requested by Plaintiffs, and Plaintiffs' request to add four custodians to Defendant's ESI search is denied; (2) Defendant shall produce documents in response to Plaintiffs' Category 2, with some limitations; and (3) Defendant shall complete its productions in response to Plaintiffs' Category 3 and Category 4 by February 21, 2025. A. Search Terms and Custodians *3 The Motion's dispute over Defendant's ESI search involves Plaintiffs' proposed search terms 1, 2, and 9, and Plaintiffs' proposed custodians Daniel Browne, Elizabeth Brown, Eric Sanders, and Todd Gross. The Special Master's resolution of these ESI disputes is premised on the widely held understanding that the producing party (Defendant) has the prerogative to select reasonable ESI search protocols, and those selections should only be disturbed if the requesting party (Plaintiffs) makes particular showings. The Special Master will survey the relevant ESI legal standards before analyzing each issue. i. Legal standards for disputes regarding ESI custodians and search terms Admittedly, “[c]aselaw governing the standard to apply” in disputes over proper ESI search terms and custodians “is sparse.” Houston v. Papa John's Int'l, Inc., No. 3:18-CV-00825-CHB, 2020 WL 6588505, at *2 (W.D. Ky. Oct. 30, 2020). Indeed, there does not appear to be any binding Sixth Circuit authority on the issue. Accord id. at *2 & n. 1 (observing that “[t]he Court has found no Sixth Circuit authority addressing th[e] discrete issue”). However, a general understanding has emerged among the district courts that have addressed the issue: the producing party is “in the best position to determine the procedures, methodologies, and technologies appropriate for producing [its] own ESI.” MSP Recovery Claims, Series, LLC v. Sanofi-Aventis U.S. LLC, No. 218CV2211BRMLHG, 2022 WL 20359241, at *13 (D.N.J. Feb. 8, 2022); accord, e.g., LKQ Corp. v. Kia Motors Am., Inc., 345 F.R.D. 152, 162 (N.D. Ill. 2023); Servicios Funerarios GG, S.A. de C.V. v. Advent Int'l Corp., No. CV 23-10684-IT, 2023 WL 7332836, at *2 (D. Mass. Nov. 7, 2023); 19 Sedona Conf. J. 1 at 118 (Principle 6);[5] see also Houston, 2020 WL 6588505, at *2 (“The district court should generally not play a role in dictating the design of a search, choosing search tools, selecting search terms, or designating custodians ....”). Indeed, this concept is embodied in this District's Administrative Order 174-1, which reasons that because “[t]he producing party is best situated to evaluate the methods and protocols appropriate for searching its own ESI ... ESI searches shall be done using methods and protocols selected by the producing party, if reasonable and likely to locate relevant ESI.” M.D. Term. Admin. Order 174-1 at 3, ¶ 6. In effect, then, a presumption exists in favor of the producing party's selected search terms and custodians, which the requesting party can overcome only by proving that those selections are “manifestly unreasonable or ... the resulting production is deficient.” Commins v. NES Rentals Holdings, Inc., No. 3:16CV-00608-GNS, 2018 WL 3186983, at *3 (W.D. Ky. June 28, 2018) (quoting Mortg. Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15 CV 0293, 2017 WL 2305398, at *2 (S.D.N. Y May 18, 2017)); accord Enslin v. Coca-Cola Co., No. 2:14-CV-06476, 2016 WL 7042206 (E.D. Pa. June 8, 2016) (“[T]he burden appropriately lies with the requesting party to show that the responding party's [ESI] search was inadequate”); 19 Sedona Conf. J. 1 at 131 (Principle 7). With respect to custodians in particular, the requesting party must “articulate a basis for the court to find that ESI in the possession of the additional custodians would be different from, and not simply duplicative of, information that the responding party has already agreed to produce.” Enslin, 2016 WL 7042206, at *2; accord, e.g., Mortg. Resolution Servicing, LLC, 2017 WL 2305398, at *3 (describing burden as “showing that the proposed additional custodians had some unique relevant information” (emphasis added)). *4 Accordingly, the search terms and custodians selected by Defendant should stand unless Plaintiffs demonstrate that they are manifestly unreasonable, insufficient to capture responsive information, and/or that additional custodians would possess unique responsive information. If Plaintiffs can satisfy that hurdle, the burden then shifts to Defendant to show that complying with Plaintiffs' proposed search terms and/or custodians would be unduly burdensome or disproportionate to the needs of the case. See, e.g., Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309–10 (W.D. Tenn. 2008) (“If [the requesting] party demonstrates relevancy, the party resisting discovery bears the burden of demonstrating why the request is unduly burdensome or otherwise not discoverable under the federal rules.”); Groupwell Int'l (HK) Ltd v. Gourmet Exp., LLC, 277 F.R.D. 348, 360 (W.D. Ky. 2011) (“A responding party must show specifically how each discovery request is burdensome and oppressive by submitting affidavits or offering evidence revealing the nature of the burden.” (citation omitted)). ii. Search Term 1 According to Plaintiffs, Search Term 1 is “drafted to capture” “discussions concerning the misappropriated manufacturing, processing, and validation trade secrets” related to Plaintiffs' products. See Pls' Reply in Supp. of Mot. (ECF. 231) at 2. Below, find a side-by-side of Plaintiffs' proposed Search Term 1 with Defendant's proposed Search Term 1. Connectors that change between the two proposals are shown in bold; terms that appear in one proposal but are omitted from the other are underlined. No. 1[6] 1a[7] Plaintiffs' Proposal (tox* OR BoNT OR dost* OR botul* OR Daxxify OR Dax* OR DaxibotulinumtoxinA OR RTT* OR RT-001 OR RTOO1 OR RT-002 OR RT002 OR RTT-900 OR RTT900 OR PROJ-000005 OR UN1086AD) w/50 (manuf* OR chroma* OR process OR purif* OR DS* OR drug substance OR anion OR AEC OR AEX OR cation OR CEC OR CEX OR hydroph* OR HIC OR control limit OR valida* OR JMP* OR BPS* OR ABD* OR (des* W/5 exp*) OR (list W/3 lab*)) (tox* OR BoNT OR dost* OR botul* OR Daxxify OR Dax* OR DaxibotulinumtoxinA OR RTT* OR RT-001 OR RT001 OR RT-002 OR RT002 OR RTT-900 OR RTT900 OR PROJ-000005 OR UN1086AD) w/25 (manuf* OR chroma* OR process OR purif* OR DS* OR drug substance OR anion OR AEC OR AEX OR cation OR CEC OR CEX OR hydroph* OR HIC OR control limit OR valida* OR JMP* OR BPS* OR ABD* OR (des* W/5 exp*) OR (list W/3 lab*)) Defendant's Proposal (tox* OR BoNT OR dost* OR botul* OR Daxxify OR Dax* OR DaxibotulinumtoxinA OR RTT* OR RT-001 ORRTOOl OR RT-002 OR RT002 OR RTT-900 OR RTT900 OR PROJ-000005 OR UN1086AD) w/25 (chroma* OR purif* OR DS* OR drug substance OR anion OR AEC OR AEX OR cation OR CEC OR CEX OR hydroph* OR HIC OR control limit OR JMP* OR BPS* OR ABD* OR (des* W/5 exp*) OR (list W/3 lab*)) As illustrated, there are two differences between Plaintiffs' proposals and Defendant's proposal: (1) Defendant proposes a “w/25” connector, whereas Plaintiffs propose an expanded “w/50” connector (at least for some custodians); and (2) Plaintiffs propose that Defendant include the terms “manuf*,” “process,” and “valida*” in the search. The Special Master adopts Defendant's proposed “w/25” as the proper connector for Search Term 1. As discussed, Plaintiffs bear the burden of illustrating that Defendant's proposed search terms are inadequate. Plaintiffs do not provide any argument for using “w/50” over “w/25” or explain which documents they think the latter might miss. Additionally, Plaintiffs already propose using the “w/25” connector for certain custodians (see term “1a” above), and they do not explain why they believe “w/25” is sufficient for those custodians but not others. *5 As to the inclusion of “manuf*,” “process,” and “valida*,” the Special Master rules that Search Term 1 shall include the terms “manuf*” and “valida*” but not “process.” The pleadings illustrate that both “manufacturing” and “validation” are relevant terms of art relating to the chemicals and cosmetic products at issue. See Compl. (ECF 1) ¶ 64 (“Revance significantly benefited from having access to Allergan Trade Secrets, including those related to manufacturing processes, standard operating procedures, best practices, and validation, in pursuing a Botox biosimilar product.” (emphasis added)); ¶ 91 (explaining that a former Allergan employee had access to Allergan trade secrets including “Botox drug substance characterization analysis and potency information related to ... validation techniques.” (emphasis added)). As Plaintiffs argue, including these terms of art in the search (alongside other terms of art like “purif*” and “drug substance,” which Defendant already agreed to include) could be necessary to capture ESI discussing these allegedly misappropriated trade secrets. See Pls' Reply in Supp. of Mot. (ECF 231) at 2. That said, while “manuf*” and “valid*” appear to be relatively unique terms of art, the unadorned word “process” seems generic and unlikely to aid in capturing responsive information. See Joint Disc. Plan (ECF 90) ¶ 8(d) (“In general, focused [search] terms, rather than overbroad terms shall be employed.”); ECF 223 ¶ 8(d) (same). The only substantive use of “process” in the complaint refers to “manufacturing processes” ((ECF 1) ¶ 45, 63, 64)—that phrase would already be captured by “manuf*.”[8] In sum, Search Term 1 shall be applied as follows: (tox* OR BoNT OR dost* OR botul* OR Daxxify OR Dax* OR DaxibotulinimitoxmA OR RTT* OR RT-001 OR RT001 OR RT-002 OR RT002 OR RTT-900 OR RTT900 OR PROJ-000005 OR UN1086AD) w/25 (manuf* OR chroma* OR purif* OR DS* OR drug substance OR anion OR AEC OR AEX OR cation OR CEC OR CEX OR hydroph* OR HIC OR control limit OR valida* OR JMP* OR BPS* OR ABD* OR (des* W/5 exp*) OR (list W/3 lab*)). iii. Search Term 2 Plaintiffs describe Search Term 2 as primarily targeting “Revance's projects that would have benefitted from Allergan's confidential documents.” See Pls' Reply in Supp. of Mot. (ECF 231) at 2 n. 2. The table below shows a side by side of the competing Search Term 2 proposals, with disputed connectors shown in bold and omitted terms underlined. Term 2 Plaintiffs' Proposal (“Daxxify” OR Dax* OR “DaxibotulinumtoxinA” OR RTT* OR tox* OR “BoNT” OR clos* OR botul* OR “Botox” OR “Botox Cosmetic” OR BTX* OR “RTT-900” OR “RTT900”) AND (“PROJ-000005” OR “UN1086AD” OR Biosim* OR “BPCIA” OR “Mylan” OR “Viatris”) Defendant's Proposal (Daxxify OR Dax* OR DaxibotulinumtoxinA OR RTT* OR tox* OR BoNT OR clost* OR botul* OR Botox OR Botox Cosmetic OR BTX* OR RTT-900 OR RTT900 OR MR-103A-01) w/25 (PROJ-000005 OR UN1086AD OR BPCIA) AND (Mylan OR Viatris) Plaintiffs make no argument against the first three differences in the two proposals: Defendant's use of “dost*” instead of “clos*”; inclusion of “MR-103A-01”; and use of a “w/25” connector instead of an “AND” connector. Because the legal standard favors Defendant's proposal unless Plaintiffs prove otherwise, the Special Master adopts these first three elements of Defendant's proposal. That leaves Plaintiffs' inclusion of the term “Biosim*” and use of an “OR” connector instead of an “AND” connector to modify “(Mylan OR Viatris).” “Biosim*” is plainly a relevant term calculated to capture responsive ESI—a significant portion of Plaintiffs' trade secret misappropriation claims relate to Defendant's development of a “Botox biosimilar.” See Compl. (ECF 1) ¶ 5 (“In addition to Daxxify, Revance has repeatedly claimed to be on the doorstep of filing regulatory papers seeking approval for a copycat ‘biosimilar’ to Botox” (emphasis added)), ¶ 8 (“p]t would be very challenging (if not impossible) to produce a biosimilar imitating Botox without access to the following highly confidential and trade secret materials ...” (emphasis added)). Because Defendant makes no specific argument against the inclusion of this relevant term, the Special Master rules that Defendant must include “Biosim*” in the search. *6 The Special Master further adopts Defendant's “AND” connector rather than Plaintiffs' “OR” connector with respect to the phrase “(Mylan OR Viatris).” Viatris, formerly known as Mylan, is the name of Defendant's commercial partner in developing the Botox biosimilar, making “(Viatris OR Mylan)” an appropriate “AND” qualifier to narrow the search term. See Compl. (ECF 1) ¶ 54 (“[B]eginning in February 2018, Revance has pursued a collaboration with Viatris, Inc. (f/k/a Mylan N. V.) to develop a biosimilar of Allergan's Botox product.” (emphasis added)). And more importantly, Plaintiffs assented to Defendant's request for an “AND” connector in a meet-and-confer letter dated August 2, 2024. ECF 220-14. See, e.g., Underwood v. O'Reilly Auto Enterprises, LLC, No. 221CV01766GMNNJK, 2022 WL 4359096, at *2 (D. Nev. Sept. 20, 2022) (“Parties will be held to the agreements their counsel reached during conferral discussions”).[9] In sum, Defendant shall apply Search Term 2 as follows: (“Daxxify” OR Dax* OR “DaxibotulinumtoxinA” OR RTT* OR tox* OR “BoNT” OR dost* OR botul* OR “Botox” OR “Botox Cosmetic” OR BTX* OR “RTT-900” OR “RTT900” OR “MR-103A-01”) w/25 (“PROJ-000005” OR “UN1086AD” OR Biosim* OR “BPCIA”) AND (“Mylan” OR “Viatris”) iv. Search Term 9 Plaintiffs claim that Search Term 9 is also primarily targeting “Revance's projects that would have benefitted from Allergan's confidential documents.” See Pls' Reply in Support of Motion (ECF 231) at 2 n. 2. The table below shows a side-by-side of the competing Search Term 9 proposals, with disputed connectors shown in bold and omitted terms underlined. Term 9[10] 9a[11] Plaintiffs' Proposal (“Daxxify” OR Dax* OR “DaxibotulinumtoxinA” OR “RT002” OR “RTT900” OR “RTT-900” OR “PROJ-000005” OR “UN1G86AD” OR “RHA” OR “dermal filler” OR “Botox” OR “Botox Cosmetic” OR BTX* OR “Juvederm” OR “Juvederm” OR “JVD” OR “Allergan” OR “AbbVie” OR “AGN” OR “ABV”) AND (survey* OR “LRP” OR (long* w/2 plan*) OR projection* OR profit* OR “net sales” OR “gross margin” OR “market share” OR royal* OR “Teoxane”) (Daxxify OR Dax* OR DaxibotulinumtoxinA OR RT002 OR RTT900 OR RTT-900 OR PROJ000005 OR UN1086AD OR RHA OR dermal filler OR Botox OR Botox Cosmetic OR BTX* OR Juvéderm OR Juvederm OR JVD OR Allergan OR AbbVie OR AGN OR ABV) w/50 (survey* OR LRP OR (long* W/2 plan*) OR projection* OR profit* OR net sales OR gross margin OR market share OR royal* OR Teoxane) Defendant's Proposal (Daxxify OR Dax* OR DaxibotulinumtoxinA OR RT002 OR RTT900 OR RTT-900 OR PROJ-000005 OR UN1086AD OR RHA OR dermal filler OR Botox OR Botox Cosmetic OR BTX* OR Juvederm OR Juvederm OR JVD OR Allergan OR AbbVie OR AGN OR ABV) w/25 (survey* OR LRP OR (long* W/2 plan*) OR projection* OR profit* OR net sales OR gross margin OR market share OR royal*) *7 As shown, the differences are (1) the “w/25” connector proposed by Defendant versus the “AND” and “w/50” connectors proposed by Plaintiffs, and (2) Plaintiffs' inclusion of “Teoxane.” Plaintiffs again make no argument for the more expansive connectors, so given the legal standard favoring Defendant's proposals, the Special Master rules that Defendant shall use the “w/25” connector. The Special Master further rules that the Defendant shall include “Teoxane” for the same reason as the other additions discussed above. Teoxane is the licensor for Defendant's line of dermal fillers, which compete with Plaintiffs' Juvéderm products and were allegedly brought to market via trade secrets misappropriation. See Pls' Reply in Supp. of Mot (ECF 231) at 2 (“[F]or Term 9, Revance seeks to omit the word ‘Teoxane,’ which is Revance's dermal filler licensor and therefore critical to identifying relevant documents.”); Complaint (Compl. (ECF 1)) ¶ 67 (“Revance in-licensed its RHA Collection [of dermal fillers] from a third party, Teoxane SA.”). As with the inclusion of “(Mylan OR Viatris)” in Search Term 2, including the name of Defendant's commercial partner is likely to capture relevant documents. And Defendant makes no argument against the inclusion of the term “Teoxane” in its briefing.[12] In sum, Defendant shall apply Search Term 9 as follows: (Daxxify OR Dax* OR DaxibotulinumtoxinA OR RT002 OR RTT900 OR RTT-900 OR PROJ000005 OR UN1086AD OR RHA OR dermal filler OR Botox OR Botox Cosmetic OR BTX* OR Juvederm OR Juvederm OR JVD OR Allergan OR AbbVie OR AGN OR ABV) w/25 (survey* OR LRP OR (long* W/2 plan*) OR projection* OR profit* OR net sales OR gross margin OR market share OR royal* OR Teoxane). v. Custodians Plaintiffs request that Defendant add four additional custodians (Daniel Browne, Elizabeth Brown, Eric Sanders, and Todd Gross) to the existing list of 22 custodians against whom Defendant is running ESI searches. As discussed below, Plaintiffs failed to show that any of these proposed custodians possess “unique” ESI. See Mortg. Resolution Servicing, LLC, 2017 WL 2305398, at *3. a. Daniel Browne Daniel Browne was Defendant's Chief Executive Officer from 2002 to 2019 (three years before Defendant obtained regulatory approval for the Daaxify product at the heart of this case). Pls' Statement Regarding Custodians (ECF 213) at 4. Mr. Browne never worked for Allergan. See Def.'s Statement Regarding Custodians (ECF 222) at 6. Plaintiffs' argument for including Mr. Browne as a custodian is essentially supposition that, because he held an executive position in Defendant's company, he must have relevant ESI. See Pls. Statement Regarding Custodians (ECF 213) at 4–5 (“Given Mr. Browne's position at Revance, the fact that numerous Allergan employees were hired by Revance while he led the company, and the likelihood that Mr. Browne himself identified or recruited former Allergan employees to Revance, render [sic] his custodial ESI likely to contain unique, discoverable information ....”); see also id. (“[I]t is [also] undisputed that Mr. Browne negotiated Revance's entry into a collaboration with third-party Viatris ... to develop a proposed Botox Biosimilar”). But as Defendant argues, Plaintiffs do not contend that Mr. Browne was personally involved in any of the alleged misappropriation (such that he would have unique ESI), and the mere fact that he held an executive position at Revance—by itself—is not a sufficient basis to add him as a custodian. See Houston, 2020 WL 6588505, at *2 (“Mere speculation that an individual's high-ranking position within an organization might increase the relevance of that individual's files is not a basis for designating that individual as a custodian.”); see also id. (refusing to order that former CEOs be named as ESI custodians because “PlaintifFs [made] only ... general assertions that [proposed custodians] former status as CEOs makes them likely to have information relevant to the [practices challenged in the lawsuit]”). Accordingly, the Special Master denies Plaintiffs' request to add Mr. Browne as a custodian. b. Elizabeth Brown *8 Elizabeth Brown was Defendant's “Talent Acquisition Business Partner” from December 2022 to October 2023. Pls. Statement Regarding Custodians (ECF 213) at 5. The parties point to nothing in the record indicating that she worked for Allergan. Plaintiffs' argument for adding Ms. Brown is similar to their argument for adding Defendant's former CEO: because of Ms. Brown's title, she must have unique ESI about Revance's recruiting strategy. See id. at 5. (“Given Ms. Brown's position and involvement in recruiting Revance employees, Ms. Brown's custodial ESI is likely to contain unique, discoverable information concerning at least the development of Revance's recruiting strategy.”). That argument fails on three accounts: (1) as noted, a high-level title is not independently sufficient to justify the addition of a custodian, see Houston, 2020 WL 6588505, at *2; (2) Defendant has already agreed to include Steve Gerhart (Defendant's VP of Human Resources) as a custodian,[13] and Plaintiffs do not make any argument that Ms. Brown possesses unique recruiting ESI beyond what Revance will capture by searching Mr. Gerhart's ESI; (3) Defendant's recruiting of Allergan employees is not independently actionable and, in and of itself, possesses no relevance—it is only trade secret appropriation that is at issue, and Plaintiffs have articulated no basis to believe that Ms. Brown was involved in such misappropriation.[14] Accordingly, the Special Master denies Plaintiffs' request to add Ms. Brown as a custodian. c. Eric Sanders Eric Saunders was Defendant's “Vice President, Therapeutics Marketing” from April 2017 “until recently.” See Pls. Statement Regarding Custodians (ECF 213) at 6. “He was previously employed by Allergan from April 2001 to March 2017, including in the role of Senior Director Corporate Alliances: Allergan Business Development.” Id. Plaintiffs argue that, “[g]iven Mr. Sanders's role, his custodial ESI is likely to contain unique, discoverable information concerning at least the development of Revance's regulatory drug approval efforts, third-party collaborations, development of Revance's Daxxify product, and proposed Botox Biosimilar, each of which Allergan has accused of being infected with misappropriated Allergan trade secrets.” Id. But as Defendant points out, Mr. Sanders is not accused of engaging in any trade secret misappropriation. Indeed, at the time he left Allergan for Defendant, Defendant's Daaxify product was in its infancy and, according to Plaintiffs' own allegations, many years away from being a viable competitor. Plaintiffs allege that even as late as April 2019 (two years after Mr. Sanders joined Defendant), Defendant “had no BoNT products on the market, and had not yet obtained regulatory approval for [Daaxify]. There was also no suggestion that its biosimilar ... had made any meaningful clinical progress.” Compl. (ECF 1) ¶ 73. Moreover, Defendant contends that any relevant information Mr. Sanders may possess is equally available from an already-agreed custodian: Defendant's recent “Head of Marketing, Therapeutics,” Cara Chastain. Def.'s Statement Regarding Custodians (ECF 222) at 7. Plaintiffs do not argue that Mr. Sanders possesses unique information above and beyond that attainable from Ms. Chastain. Accordingly, the Special Master denies Plaintiffs' request to add Mr. Sanders as a custodian. d. Todd Gross *9 Todd Gross has been Defendant's “Vice President, Clinical Development and Data Science” since August 2018. Pls. Statement Regarding Custodians (ECF 213) at 7. He worked at Allergan from 2009 to 2013 (he did not go straight from Allergan to Revance). Id. When he worked for Allergan, he was “Senior Director, Biostatistics and Clinical Data Management, and Dermatology Program Leader.” Id. Plaintiffs' argument for Mr. Gross' addition is, again, exclusively related to the titles he held at each company (notwithstanding the five-year gap between his two employments). Id. (“Given Dr. Gross' positions at Allergan and Revance, his custodial ESI is likely to contain unique, discoverable ESI concerning at least the development of Revance's regulatory drug approval efforts, third-party collaborations, and development of Revance's Daxxify product, daxibotulinumtoxinA manufacturing process, and cell-based potency assay, each of which likely contain Allergan trade secrets.”). This argument is insufficient because (1) Mr. Gross is not accused of misappropriation, and Plaintiffs do not explain how he possibly could have given Plaintiffs' trade secrets to Defendant considering the five-year gap in his employments;[15] (2) Mr. Gross's position itself is not an independent basis to add him as a custodian, Houston, 2020 WL 6588505, at *2; and (3) general information on Defendant's regulatory efforts, third-party collaborations, etc. is already available from agreed-custodian Jennifer Aggabao,[16] who is accused of misappropriation, see Compl. (ECF 1) ¶¶ 83–101. Accordingly, the Special Master denies Plaintiffs' request to add Mr. Gross as a custodian. * * * In sum, the Special Master rules that Plaintiffs failed to meet their burden of showing how ESI from Daniel Browne, Elizabeth Brown, Eric Sanders or Todd Gross may contain unique, relevant information. Therefore, the Special Master denies Plaintiffs' request to add these individuals as custodians that Defendant must search. B. Production of Defendant's customer list and communications with customers (Plaintiffs “Category 2”). The Motion's second substantive dispute concerns Defendant's unwillingness to respond to Plaintiffs' “Category 2” of discovery requests, which contains Request for Production (“RFP”) No. 26 and Interrogatory (“ROG”) No. 5: Plaintiffs' Category 2: Customer Communications RFP No. 26 ROG No. 5 All communications with Revance's actual or potential clients about moving their botulinum neurotoxin injectable products or dermal filler products business away from Allergan, including, but not limited to, Revance's #BREAKUPWITHBOTOX campaign (see, e.g., https://breakupwitholdtox.com). Later narrowed to the information above but only as to communications involving Allergan's former sales employees who went to work for Revance. Identify Revance's Daxxify and/or dermal filler customers who were Allergan or AbbVie customers and for each customer identify the date that Revance first contacted the customer and every person at Revance who communicated with the customers. Later narrowed to Revance's customer list, or a list of Revance customers who overlap with Allergan's customers. *10 Defendant's main argument against responding to RFP No. 26 and ROG 5 is that the identity of Revance's customers and its communications with those customers are not relevant. See, e.g., Def.'s Opp'n to Mot. (ECF 230) at 11 (“Allergan has not articulated why customer communications are discoverable, nor could it.”). Failing that, Defendant contends that the production sought would be unduly burdensome. See, e.g., id. at 10 (“It is hard to overstate the scope of this request.”). As the requesting party, it is Allergan's initial burden to “demonstrate that the requests are relevant to the claims or defenses in the pending action.” Anderson, 251 F.R.D. at 309; see also id (“Relevancy for discovery purposes is construed [more] broadly [than relevancy under the Federal Rules of Evidence].”). Once Allergan has demonstrated relevancy, the burden shifts to Revance to “demonstrate[ ] why the request is unduly burdensome or otherwise not discoverable under the Federal Rules.” Id. As discussed below, the Special Master rules that Revance must respond to both requests, with some limitations. i. RFP No. 26 Defendant contends that the customer communications sought through RFP No. 26 lack relevance because “this case is about Revance's supposed misappropriation of Allergan's trade secrets ... to develop and manufacture a competing product to Botox. It is not about stealing customers.” Def.'s Opp'n to Mot. (ECF 230) at 10. Further, Defendant argues that RFP No. 26 is unduly burdensome and/or disproportionate to the needs of the case because (1) Defendant employs 26 former Allergan sales personnel, (2) Defendant does roughly $220 million in business a year with over 7,500 customer accounts, and (3) Defendant perceives RFP No. 26 as “requir[ing] [the] produc[tion] [of] every communication with every client and prospective client” of Defendant. See id. at 9–10, 12–14 (“RFP 26 encompasses every communication anyone at Revance ever had with any actual or potential customer about purchasing Daxxify.”). Finally, Defendant posits that RFP No. 26 would only be permissible if limited to the former Allergan salespeople Plaintiffs have thus-far identified as misappropriating trade secret information (Wendy Shepherd, Debbie Thompson, Alexis Jammo, and Auburn Nikolos). Id. at 13. Plaintiffs argue that customer communications from former-Allergan-salespersons-turned-Revance-salespersons are relevant because Plaintiffs have alleged the theft of customer-information trade secrets. Pls' Reply in Supp. of Mot. (ECF 231) at 3. Plaintiffs also contend that RFP No. 26 is not intended to capture every communication with every Revance customer (as Defendant argues); rather, RFP No. 26 is “limited to customers who overlap with Allergan's and communications involving Allergan's former employees poached by Revance.” Id. at 4. Plaintiffs also contend that RFP No. 26 need not be limited to the former Allergan sales personnel that Plaintiffs have already identified as misappropriating, because Plaintiffs have alleged a scheme of misappropriating trade secrets through hiring practices that is broader than the specific examples enumerated in the pleadings. Id. As an initial matter, Plaintiffs have properly alleged theft of customer-information trade secrets by former Allergan sales personal hired by Revance. See Complaint (Compl. (ECF 1)) ¶ 34 (“The Allergan Trade Secrets include, for example ... (vi) data regarding Allergan's customers for Botox and/or Juvéderm, including market data, preferences, contacts, buying history, confidential sales representative success rates, territories, identities, and related information”), ¶ 117 (alleging that former Allergan employee Wendy Sheppard misappropriated “highly confidential internal sales tracking, customer lists, action plans, internal frequently asked question strategies, and more”), ¶ 120 (alleging that Ms. Sheppard misappropriated “a customer email distribution list”). Indeed, the Court rejected Defendant's motion-to-dismiss argument that the Plaintiffs' “business” trade secrets (such as customer data) do not qualify for trade secret protection. See ECF 69 at 33–34. Thus, customer communications of former Allergan sales personnel who became Revance sales personnel are relevant to that properly pled theory insofar as those communications evidence use of misappropriated customer information. *11 The Special Master also agrees that RFP No. 26 is not as far reaching as Defendant perceives it to be. There are important limitations built into the request that prevent it from capturing every communication that every former Allergan employee has with every Revance customer. First, the request is not unqualified—it asks only for customer communications “about moving their botulinum neurotoxin injectable products or dermal filler products business away from Allergan.” Thus, only customer communications that actually reference Allergan, Botox, or Juvéderm are responsive—communications that simply seek to attract business but do not draw comparisons with or otherwise reference Plaintiffs' company or products are not responsive. Second, by Plaintiffs own allegations, Defendant did not have a dermal filler product competitive with Juvéderm on the market until 2020, and it did not have a BoNT product competitive with Botox on the market until September 2022. Compl. (ECF 1) ¶¶ 4, 66. Thus, Defendant's search should begin in 2020 for communications soliciting Allergan's Juvéderm customers, and it should begin in September 2022 for communications soliciting Allergan's Botox customers. Further, Plaintiffs are correct that the search need not be limited to the specific salespeople Plaintiffs have already identified as having misappropriated trade secrets. While Plaintiffs might only identify specific examples of misappropriation in the pleadings, they have also alleged a much broader scheme of misappropriation that extends beyond the particular individuals identified. See Complaint (Compl. (ECF 1)), ¶ 75 (“Revance has engaged in a concerted pattern and practice of filling its ranks with individual who have intimate knowledge of the Allergan Trade Secrets ....” (emphasis added)), ¶ 87 (“[A] pattern of trade secret misappropriation for Revance's benefit was revealed and Revance's willful, repeated, and ongoing scheme to target and hire Allergan employees to obtain Allergan Trade Secrets confirmed.” (emphasis added)). Plaintiffs have a right to probe those allegations through discovery. Because Plaintiffs allegations (which have survived a motion to dismiss (ECF 69)) are not limited to the examples of misappropriation enumerated in the complaint, discovery need not be limited to those examples. See B&P Liffleford, LLC v. Prescott Machine, LLC, No. 1:20-CV-13025, 2022 WL 625069, *5 (E.D. Mich. Mar. 3, 2022) (finding that discovery in a copyright-infringement case relating to theft of technical drawings need not be limited to the four drawings identified specifically in the complaint where the complaint “oulin[es] a much broader scheme of infringement involving an unknown number of drawings.”). All that said, Defendant is correct that this is a trade secret misappropriation case, and the only actionable conduct is Revance's use of Allergan trade secrets—mere solicitation of Allergan employees and/or Allergan customers is not, in and of itself, relevant. While Defendant is mistaken in contending that customer communications are totally irrelevant, the Special Master agrees that this case “is not about stealing customers” per se. Def.'s Opp'n to Mot. (ECF 230) at 10. Defendant's competition with Allergan for employees and customers is not tortious by itself, and documents that would merely go to show the fact of that competition are therefore irrelevant. What matters is whether former Allergan personnel used Allergan trade secrets to conduct that competition. This warrants a further reduction of RFP No. 26's scope: because a former Allergan employee is most likely to use his previous employer's customer-information trade secrets shortly after beginning his new employment with Revance, RFP No. 26 should be limited to only the first year of each salespersons' work with Revance. Cf. England v. Advance Auto Stores Co., Inc., No. 1:07CV-174-TBR, 2008 WL 11358128, at *7 (W.D. Ky. Dec. 9, 2008) (observing that, when faced with a discovery dispute, the Court has discretion to “deny discovery completely, [or] limit the conditions, time, place or topics of discovery.”). This should capture evidence (if any) of the employee using Allergan's trade secrets shortly after the transition in employment while reducing the risk of capturing innocent, non-tortious communications. *12 The case law Defendant cites does not change the Special Master's conclusion. In Sylva Corporation, Inc. v. Lewandowski, a case involving intellectual property theft by sales personnel who switched employers, the Court refused to compel responses to an RFP that sought “all documents, without temporal limitation, relating to actual or prospective customers solicited, contacted, or identified ... regardless of the nature of those documents and whether they relate to at-issue products, at-issue customers, or even the relevant time period.” No. 20-CV-184 (PJS/LIB), 2021 WL 5087267, *8–9 (D. Minn. May 4, 2021). But as illustrated, RFP No. 26 is narrower than that—it is expressly limited to only communications steering business from Allergan to Revance, it is impliedly limited to only the time periods for which Revance actually offered a competing product, and the Special Master has imposed further temporal limitations. In Ikon Office Solutions, Inc. v. Konica Minolta Business Solutions, U.S.A., Inc., a customer-information trade secret misappropriation case, the Court declined to compel the production of “confidential information regarding [producing parties'] customers” which was requested “regardless of whether those customers have anything to do with [Plaintiff] or this lawsuit” because “[a]t [that] juncture, [plaintiff] ha[d] not established that this information [was] sufficiently necessary and relevant to the case to outweigh the harm of disclosure.” No. 3:08-CV-539-RLV-DCK, 2009 WL 4429156, *5 (W.D.N.C. Nov. 25, 2009). But again, RFP No. 26 is more tailored: it specifically seeks customer communications involving attempts to divert Allergan customers to Revance, and it is limited to only former Allergan employees who would be in a position to misuse Allergan trade secrets. And any confidential Revance information can and should be produced pursuant to the disclosure and use restrictions of the protective order in this case. ECF 53.[17] In sum, the Special Master holds that Defendant shall produce documents responsive to RFP No. 26 for its sales personnel who previously worked for Allergan, but it only needs to produce customer communications within one year of each employee's start date with Revance, and only beginning in January 2020 for Juvéderm-competition-focused communications and September 2022 for Botox-competition-focused communications. The Special Master defers to the parties to generate appropriate search terms pursuant to their Joint Discovery Plan (ECF 90; ECF 223), but those terms should be crafted with the understanding that (1) only communications related to pulling business away from Allergan are responsive, (2) and only communications that tend to show some use of trade secrets are relevant. ii. Interrogatory No. 5 Defendant contends that Plaintiffs' request for its entire customer list in ROG No. 5 is overbroad. See Def.'s Opp'n to Mot. (ECF 230) at 15. But as discussed above, overlap between Revance's customer base and Allergan's customer base is relevant to the extent Revance diverted customers from Allergan through trade secret misappropriation (as Plaintiffs allege). Thus, at the least, the identity of customers that the two businesses “share” is relevant. Perhaps recognizing this, Defendant previously agreed to produce at least some version of its customer list. See July 3, 2024, Court Order (ECF 189) at 3 (“The parties have also largely worked through their differences on customer lists—Allergan produced fists of is customers, and Revance will either cross-reference Allergan's list to generate a list of shared customers or it will produce its own list of customers with whom the sale representatives referenced in the complaint interact.” (quoting Defendant's briefing)); see also e.g., Underwood, 2022 WL 4359096, at *2 (“Parties will be held to the agreements their counsel reached during conferral discussions”). And the option for Defendant to produce its entire customer is really an accommodation—Plaintiffs would be fine with a list of customers that the two companies “share,”[18] but Defendant complains that cross-referencing Plaintiffs' customer list to produce a “shared” list would be burdensome.[19] Allowing Defendant to produce its full list will empower Plaintiffs to do the cross-referencing, alleviating Defendant's burden. *13 Considering the above, the Special Master holds that Defendant must respond to Interrogatory No. 5, but it can either (1) produce its entire list of customers for its Daaxify and RHA Collection products (i.e., those products alleged to be competitive with Plaintiffs') or (2) produce a list of “shared” customers for these products. The second option is more tailored to the allegations, while the first option would allow Defendant to shift the burden of “cross-referencing” to Plaintiffs.[20] Any such list(s) could of course be produced subject to the confidentiality protections of the protective order in this case. See Protective Order (ECF 53). C. Productions in response to Plaintiffs' RFP Nos. 37 and 69 (Plaintiffs' “Category 3”) According to the briefing, Defendant has already agreed to, and in fact has begun, making productions in response to Plaintiffs' RFP Nos. 37 and 69. See Def.'s Opp'n to Mot. (ECF 230) at 8 (“Revance has begun the process of producing documents responsive to Category 3 and anticipates completing that production soon”); Pls' Reply in Supp. of Mot. (ECF 231) at 5 (“Revance agreed to produce these [category 3] documents in May 2024.” (emphasis in original)). Defendant contends that, because it has already agreed to produce documents in response to these requests, the Motion should be denied as moot vis-à-vis Category 3. Def.'s Opp'n to Mot. (ECF 230) at 8. Plaintiffs contend that the Court should enter an order establishing a production deadline. Pls' Reply in Supp. of Mot. (ECF 231) at 5. Because Defendant stated that it had “begun the process of producing documents responsive to Category 3” many months ago (mid-October 2024), and because the current discovery cut-off is fast approaching (March 21, 2025), a production deadline is prudent The Special Master rules that Defendant must complete its production in response to “Category 3” by February 21, 2025, which should allow time to use those documents in depositions before the close of discovery. D. Productions in Response to Plaintiffs' RFP Nos. 38, 46, 50, and 98 (Plaintiffs' “Category 4”) This issue is the same as Category 3—Defendant has agreed to, and appears to have begun, producing the requested productions; Defendant believes this portion of the Motion should be denied as moot; Plaintiffs believe a production deadline should be imposed. See Def.'s Opp'n to Mot. (ECF 230) at 9; Pls' Reply in Supp. of Mot. (ECF 231) at 5. For the same reasons stated above, Defendant shall complete its production in response to “Category 4” by February 21, 2025. IV. Conclusion In accordance with the foregoing, the Special Master hereby ORDERS that: 1. Plaintiffs' Renewed Motion to Compel Production of Certain Documents (ECF 220) is GRANTED in part and DENIED in part. 2. Plaintiffs request to modify Defendant's ESI search terms is GRANTED in part. Defendant shall immediately search its ESI with the following search terms: Term 1 Term 2 Term 9 (tox* OR BoNT OR dost* OR botul* OR Daxxify OR Dax* OR DaxibotulinumtoxinA OR RTT* OR RT-001 OR RT001 OR RT-002 OR RT002 OR RTT-900 OR RTT900 OR PROJ-000005 OR UN1086AD) w/25 (manuf* OR chroma* OR purif* OR DS* OR drug substance OR anion OR AEC OR AEX OR cation OR CEC OR CEX OR hydroph* OR HIC OR control limit OR valida* OR JMP* OR BPS* OR ABD* OR (des* W/5 exp*) OR (list W/3 lab*)) (“Daxxify” OR Dax* OR “DaxibotulinumtoxinA” OR RTT* OR tox* OR “BoNT” OR dost* OR botul* OR “Botox” OR “Botox Cosmetic” OR BTX* OR “RTT-900” OR “RTT900” OR “MR-103A-01”) w/25 (“PROJ-000005” OR “UN1086AD” OR Biosim* OR “BPCIA”) AND (“Mylan” OR “Viatris”) (Daxxify OR Dax* OR DaxibotulinumtoxinA OR RT002 OR RTT900 OR RTT-900 OR PROJ000005 OR UN1086AD OR RHA OR dermal filler OR Botox OR Botox Cosmetic OR BTX* OR Juvederm OR Juvederm OR JVD OR Allergan OR AbbVie OR AGN OR ABV) w/25 (survey* OR LRP OR (long* W/2 plan*) OR projection* OR profit* OR net sales OR gross margin OR market share OR royal* OR Teoxane) *14 3. Defendant SHALL immediately begin rolling productions based on the search terms identified in paragraph 2. 4. Plaintiffs' request to add ESI custodians Daniel Browne, Elizabeth Brown, Eric Sanders, and Todd Gross is DENIED. 5. Plaintiffs' request to compel production in response to its RFP No. 26 and ROG No. 5 is GRANTED in part. a. Defendant SHALL produce documents responsive to RFP No. 26 from Defendant's 26 salespersons who previously worked for Allergan, with the following limitations: i. Defendant need only produce communications related to diverting customers from Allergan to Revance. ii. Defendant need not produce any communications relating to the RHA Collection or Juvéderm before January 1, 2020. iii. Defendant need not produce any communications relating to Botox or Daaxify before September 1, 2022. iv. Assuming that the dates of their employment with Revance fit within the time limitations imposed by ii. and iii. above, Defendant only needs to search for responsive communications beginning on the first day of each salesperson's employment with Revance, and ending 365 days later. v. For clarity, a hypothetical former Allergan salesperson hired by Revance need not be searched at all if they began their employment with Revance in 2018 (more than one year before the start date for RHA Collection / Juvéderm communications and more than three years before the start date for Botox / Daaxify communications). An employee who started with Revance in 2020 need only be searched for RHA Collection / Juvéderm communications (not Botox / Daaxify communications) and need only be searched for one year following their start date with Revance. An employee who started with Revance in October 2022 must be searched for both RHA Collection / Juvéderm communications and Botox / Daaxify communications, starting on their first day of employment with Revance and ending one year later. vi. The parties shall develop search terms targeted to capture responsive documents pursuant to paragraph 8(d) of their Proposed Joint Discovery Plan (ECF 90; ECF 223), with the following modifications to accommodate the rapidly approaching discovery cutoff: A. Revance shall disclose its proposed search terms to Allergan by February 17, 2025. B. Allergan may request reasonable additions or modifications to those search terms by February 21, 2025. C. If any disputes arise that the parties cannot resolve independently, they should immediately submit them to the Special Master pursuant to the dispute submission procedure in the parties' January 13, 2025, Joint Submission to the Special Master (as modified by the Special Master). b. In response to ROG No. 5, Defendant shall produce either its entire list of Daaxify and RHA Collection customers or a list of customers that that parties “share” by February 21, 2025. 6. Defendant SHALL complete its productions in response to Plaintiffs' RFPs No. 37 and 39 by February 21, 2025. 7. Defendant SHALL complete its productions in response to Plaintiffs' RFPs No. 36, 38, 46, 50, and 98 by February 21, 2025. 8. All other relief sought in Plaintiffs' Renewed Motion to Compel Production of Certain Documents (ECF 220) is DENIED. *15 9. Pursuant to paragraph three of the Court's Order Modifying Case Management Order and Granting Request for the Appointment of a Special Master (ECF 275), the parties have twenty-one (21) days from the date of this Order to file objections or a motion to adopt or modify any of the Special Master's rulings in this Order. IT IS SO ORDERED. Footnotes [1] This Order refers to Plaintiffs as “Plaintiffs” and “Allergan” interchangeably. [2] This Order refers to Defendant as “Defendant” and “Revance” interchangeably. [3] A “biosimilar” is a product “highly similar” to an existing biologic product that has already obtained regulatory approval. Compl. (ECF 1) ¶ 57. If the manufacturer of the biosimilar can prove that there are “no ‘clinically meaningful differences’ between the [biosimilar and the already-licensed product] in terms of ‘safety, purity, and potency,” ’ the biosimilar can bypass certain stages of the regulatory process, saving time and expense. Id. (quoting 42 U.S.C. § 262). [4] The parties Joint Discovery Plan does not displace the background ESI principles of the Middle District's Administrative Order 174-1. See ECF 90 ¶ 8(a) (“This ESI Protocol [within the Joint Discovery Plan] applies to the ESI provisions of Federal Rules of Civil Procedure 26, 33, 34, 37, and Administrative Order 174-1 of the U.S.D.C. Middle District of Tennessee.”); ECF 223 ¶ 8(a) (same). [5] “To address disputes regarding ESI, many courts have also turned to the Sedona Principles and Sedona Commentaries, which are ‘the leading authorities on electronic document retrieval and production.’ ” LKQ Corp., 345 F.R.D. at 162 (quoting DeGeer v. Gillis, 755 F. Supp. 2d 909, 918 (N.D. Ill. 2010)). [6] Plaintiffs propose that search term “1” be applied to custodians David Hollander and Auburn Nikolos. See Pls' Br. in Supp. of Mot. (ECF 215) at 16. [7] Plaintiffs propose that search term “1 a,” which uses a “w/25” connector instead of a “w/50” connector, be applied to custodians Jennifer Aggabao, Conor Gallagher, Abhay Joshi, Dominic Vitarella, Roy Yoshimitsu, Curtis Ruegg, Derek Chan, Jacob Waugh, Michael Lietzow. See Pls' Br. in Supp. of Mot. (ECF 215) at 16. Defendant propose that its search term “1” be applied to both sets of custodians. See Def.'s Opp'n to Mot. (ECF 230) at 4. [8] In an August 26, 2024, meet-and-confer letter, Defendant contended that Search Term 1 was unduly burdensome because it resulted in 251,373 document “hits” across seven custodians. ECF 220-15 at 2. However, it is unclear if this high “hit” count was attributable to Plaintiffs' proposed “w/50” connector or the inclusion of “manuf” and “valid*.” Defendant makes no specific argument related to latter. Accordingly, Defendant has not carried its burden of showing that the inclusion of “manuf*” and “valid*”—which appear likely to capture relevant information for the reasons discussed above—would be unduly burdensome. See Anderson, 251 F.R.D. at 309–10 (resisting party bears the burden of showing undue burden). [9] In its August 26, 2024, meet-and-confer letter, Defendant contended that Search Term 2 was unduly burdensome because it resulted in 99,979 document “hits” across nine custodians. ECF 220-15 at 3. As with Search Term 1, however (see note 8, supra), it is unclear if the size of this “hit” count is attributable to the connectors Plaintiffs suggested, the inclusion of “biosim*,” or Plaintiffs use of an “OR” connector to modify “(Mylan OR Viatris).” Defendant again makes no specific argument against the inclusion of “biosim*,” which appears to be a relevant term of art, as stated above. See Groupwell Int'l. (HK) Ltd., 277 F.R.D. at 360 (explaining that the party arguing undue burden must make “specific” showings of the burden claimed). Moreover, in an August 29, 2024, letter, Plaintiffs asserted that “Allergran agreed to search terms proposed by Revance that hit on higher numbers of documents for individual custodians” than Search Term 2. ECF 220-16 at 2. If that is true, it further illustrates that Search Term 2 is proportional to the needs of the case—the proportionality of discovery from one party is often colored by the degree of discovery allowed by the other. See Branson v. All. Coal, LLC, No. 419CV00155JHMHBB, 2022 WL 2717625, at *9 (W.D. Ky. July 13, 2022) (“[I]t is inequitable for one party to be limited in size when seeking discovery while the other party is allowed full reign ... ‘[W]hat is good for the goose is good for the gander’ ” (citation omitted)). [10] Plaintiffs propose that Search Term “9” be applied to custodians David Hollander, Alexis Jammo, Auburn Nikolos, Wendy Shepherd, and Debbie Thompson. See Pls.' Br. in Supp. of Mot. (ECF 215) at 18. [11] Plaintiffs proposed that Search Term “9a” be applied to custodians Cara Chastain, Conor Gallagher, Abhay Joshi, Dustin Sjuts, Jacob Waugh, and Robert Jones. See Pls.' Br. in Supp. of Mot. (ECF 215) at 18. Defendant proposes that its search term “9” be applied to both sets of custodians. See Def.'s Opp'n to Mot. (ECF 230) at 4. [12] Defendant's August 26, 2024, meet-and-confer letter contended that Search Term 9 was unduly burdensome because it resulted in 181,040 “hits” across nine custodians. ECF 220-15 at 3. As with Search Terms 1 and 2, however (see notes 8 and 9, supra), it is unclear if this number correlates to Plaintiffs' expanded connectors (which the Special Master rejects), or the inclusion of “Teoxane” (which appears justified). As stated, Defendant makes no specific argument against the inclusion of Teoxane, which appears relevant. [13] Def.'s Statement Regarding Custodians (ECF 222) at 6. [14] Plaintiffs note that Ms. Brown “sent recurring emails to Allergan employees via LinkedIn,” but as Plaintiffs acknowledge, Defendant “claim[s] that it lacks possession, custody, and control” over those LinkedIn messages. See Pls. Statement Regarding Custodians (ECF 213) at 5. If Defendant lacks possession, custody, or control over Ms. Brown's Linkedln messages (and it is unclear how Defendant could possibly possess or control personal Linkedln messages of a former employee), then it is unclear how adding Ms. Brown as a custodian could result in the production of those messages. [15] Additionally, at the time Mr. Gross left Plaintiffs' employ in 2013, Defendant was not yet even developing a Botox competitive product. See Compl. (ECF 1) ¶ 3 (alleging that Defendant “pivoted” to developing a Botox competitive product in 2016). [16] Jennifer Aggaboa is Defendant's “Senior Director, Regulatory Affairs” Compl. (ECF 1) ¶ 85. [17] Indeed, Allergan has already produced its own (presumably confidential) customer fist. See Def.'s Resp. in Opp'n to Mot. (ECF 230) at 11 (confirming Allergan has produced its customer list); Branson, LLC, 2022 WL 2717625, at *9 (noting that, in discovery, “[W]hat is good for the goose is good for the gander” (citation omitted)). [18] Br. in Supp. of Mot. (ECF 215) at 20 (stating that Plaintiffs will accept ether “Revance's customer list or a list of Revance customers who overlap with Allergan's customers” (emphasis added)). [19] Def.'s Opp'n to Mot. (ECF 230) at 11 (“In an effort to impose reasonable limitations, Revance asked Allergan to identify its customers; it has since done so, but the list remains overbroad and unduly burdensome.”). [20] To that end, the Special Master agrees with Defendant that customers who are not “shared” are technically not relevant to this case. See Patterson Dental Supply, Inc. v. Pace, No. 19-CV-1940 (JNE/LIB), 2020 WL 10223625, at *24 (D. Minn. June 17, 2020) (denying motion to compel identification of “every” one of defendant's customers, even those with no relation to the case). But again, the option to produce the full customer list in lieu of a shared customer list is merely an accommodation to reduce the burden on Defendant. If Defendant is concerned with identifying irrelevant customers, it is free to produce only a “shared” list.