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, NASHVILLE DIVISION Signed February 21, 2025 Counsel Amanda Lane Pober, Carl J. Minniti, III, Eric W. Dittmann, Matthew S. Aibel, Melanie R. Rupert, Paul Hastings LLP, New York, NY, Andrea Pallios Roberts, Paul Hastings LLP, Palo Alto, CA, Brenda L. Danek, Latham & Watkins LLP, Chicago, IL, Cecilia Peniza, Latham & Watkins LLP, Washington, DC, Gabrielle LaHatte, Latham & Watkins LLP, San Francisco, CA, James V. Razick, Jeffrey A. Pade, Richard Rothman, Paul Hastings LLP, Washington, DC, Jennifer S. Baldocchi, Lindsey C. Jackson, Paul Hastings LLP, Los Angeles, CA, Jessica Eve Mendelson, Paul Hastings LLP, San Francisco, CA, P. Anthony Sammi, Latham & Watkins LLP, New York, NY, William A. Blue, Jr., Constangy, Brooks, Smith & Prophete, LLP. Nashville Office, Brentwood, TN, for Plaintiffs. Catherine H. Molloy, Greenberg Traurig LLP, Tampa, FL, Diana A. Balluku, Gregory S. Bombard, Nathan Hsu, Greenberg Traurig, P.A., Boston, MA, Jacob R. Dean, Justin K. Victor, Greenberg Traurig, P.A., Atlanta, GA, James N. Boudreau, Greenberg Traurig, LLP, Philadelphia, PA, Jessica M. Stookey, Margaret A. Barone, Peter J. Armenio, Sheila C. Ramesh, Cahill, Gordon & Reindel LLP, New York, NY, Jonathan David Ball, Greenberg Traurig LLP, New York, NY, for Defendant. Presnell, Todd, Special Master ORDER OF THE SPECIAL MASTER RESOLVING PLAINTIFFS' MOTION TO COMPEL SEARCHING OF ESI CUSTODIANS *1 This case comes before the Special Master on Plaintiffs' Motion to Compel Searching of ESI Custodians (ECF 265) (the “Motion”). Upon due consideration of the brief in support (ECF 258; ECF 265-1), the response in opposition (ECF 277), the previous position statements the parties filed on this issue (ECF 212; 213; ECF 222), and all the relevant exhibits the parties submitted (ECF 222-1; ECF 259–ECF 264; all attachments to ECF 265), the Special Master grants the Motion in part and denies the Motion in part. I. Issues Raised by the Motion Initially, the Motion sought to compel Defendant Revance Therapeutics, Inc.[1] to search the electronically stored information (“ESI”) of nine custodians: Daniel Browne, Elizabeth Brown, Eric Sanders, Joanna Stebbins, Todd Gross, Robert Jones, Allen Li, Axita Nejad, and Savith Venkatesh. See Pls' Br. in Supp. of Mot. (ECF 258) at 1. By the end of the briefing, Revance had agreed to search the ESI of five of those custodians, leaving only four in dispute: Daniel Browne, Elizabeth Brown, Eric Sanders, and Todd Gross. Id. at 3 n. 4 (“Only custodians Browne, Brown, Sanders, and Gross remain at issue for purposes of this motion.”). Plaintiffs (various entities doing business under the “Allergan” trade name)[2] seek an order (1) compelling Defendant to search the ESI of Mr. Browne, Ms. Brown, Mr. Sanders, and Mr. Gross; and (2) requiring that Defendant complete its search of the other, agreed-upon custodians by a date certain. Id. at 13. II. Discussion The Motion is denied in part because (1) the Special Master has already denied Plaintiffs' request to add the four disputed custodians, and (2) custodian-specific production deadlines would be unworkable at this stage. That said, the Special Master also grants the Motion in part and will require that Revance honor its previous agreement to search five of the relevant custodians. In the Order of the Special Master Resolving Plaintiffs' Renewed Motion to Compel Production of Certain Documents (ECF 302), the Special Master ruled that Defendant need not search the ESI of Mr. Browne, Ms. Brown, Mr. Sanders, or Mr. Gross. See ECF 302 at 14–19. The Motion's arguments for adding these custodians are substantially identical to the arguments the Special Master has already rejected. And while Plaintiffs cite three new cases in their brief in support of the Motion, those cases do not change the Special Master's conclusion on these custodians. See Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (SK), 2018 WL 833085 (N.D. Cal. Feb. 7, 2018); In re Envision Healthcare Corp. Secs. Litig., No. 3:17-cv-01112, 2020 WL 6750397 (M.D. Tenn. Nov. 16, 2020); Mt. Hawley Ins. Co. v. Felman Prod., Inc., 269 F.R.D. 609 (S.D. W. Va. 2010). Plaintiffs cite Shenwick in arguing that Mr. Sanders' ESI should be searched, because Shenwick observed that the fact “responsive documents will necessarily be found in other custodians' records” is—by itself—“not sufficient to defeat a search of [an additional custodian's] files.” 2018 WL 833085, * 1. But the mere possibility of document overlap between Mr. Sanders and other custodians is not why the Special Master denied Plaintiffs' request—it denied that request because Mr. Sanders' involvement in the events at issue is extremely attenuated, and Plaintiffs failed to prove that Mr. Sanders' ESI would add anything relevant beyond the ESI already available from other agreed custodians. ECF 302 at 17. Plaintiffs cite In re Enivsion Healthcare in arguing that Mr. Browne's ESI should be searched, contending that, like the movant in In re Envision Healthcare, 2020 WL 6750397 at *4, Plaintiffs illustrated that Mr. Browne was substantially involved in the events in dispute and, therefore, possesses relevant ESI. But as the Special Master has explained, Plaintiffs have done nothing to show that Mr. Browne possesses relevant ESI other than pointing out that he was Revance's CEO, which is not, in and of itself, sufficient to justify adding a custodian. See ECF 302 at 15 (citing 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)).[3] Finally, Plaintiffs cite Mt. Hawley Insurance in arguing that Mr. Gross should be added as an additional custodian, notwithstanding the fact that similar information is accessible from already-agreed upon custodian Jennifer Aggaboa. But Mt. Hawley Insurance ordered the addition of several custodians only because it found that they likely possessed “additional, highly relevant materials ... which were not shared with [other custodians].” 269 F.R.D. at 620 (emphasis added). As the Special Master has explained (ECF 302 at 18), Plaintiffs did not make that showing for Mr. Gross. *2 Additionally, the Special Master cannot impose custodian-specific production deadlines at this time because the parties still appear to dispute whether some of Plaintiffs' discovery requests should be responded to at all, and if they should, to what extent. Defendant cannot practically complete productions for a specific custodian by a specific date if it does not yet know the full scope of information it will have to produce from that custodian. In sum, nothing in the briefing changes the Special Master's denial of Plaintiffs' request to add Mr. Browne, Ms. Brown, Mr. Sanders, and Mr. Gross as custodians. Further, custodian-specific production deadlines are imprudent at this time. But because Revance has already agreed to search the ESI of custodians Joanna Stebbins, Robert Jones, Allen Li, Axita Nejad, and Savith Venkatesh, they should be held to that agreement. III. Conclusion In accordance with the foregoing, the Special Master hereby ORDERS that: 1. Plaintiffs' Motion to Compel Searching of ESI Custodians (ECF 265) is GRANTED in part as follows: Defendant SHALL search the ESI of Joanna Stebbins, Robert Jones, Allen Li, Axita Nejad, and Savith Venkatesh. 2. All other relief sought in Plaintiffs' Motion to Compel Searching of ESI Custodians (ECF 265) is DENIED. 3. 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 Defendant as “Defendant” and “Revance” interchangeably. [2] This Order refers to Plaintiffs as “Plaintiffs” and “Allergan” interchangeably. [3] To the extent Plaintiffs cite In re Envision Healthcare to suggest that a movant seeking the inclusion of additional ESI custodians need only prove the potential relevance of the sought ESI, In re Envision Healthcare did not reject the wealth of authority (including numerous district court rulings, commentary from the Sedona Conference, and this District's own Administrative Order 174-1) reasoning that a producing party's custodian selections should only be disturbed if the movant shows that additional custodians possess unique ESI. 2020 WL 6750397, at *4; see also ECF 302 at 5–7 (collecting authorities on ESI motion practice).