Burge v. Teva Pharmaceuticals Industries, Ltd., No. 22-CV-2501-DDC-TJJ (D. Kan. Aug. 25, 2026), full opinion (PDF)
A party unhappy with the search terms behind a thin production often waits for the privilege log, on the theory that it will show whether privilege or a bad collection explains the shortfall. An order out of the District of Kansas puts a price on that wait. Magistrate Judge Teresa J. James denied a search-term challenge as untimely, measuring the district's 30-day deadline from the production rather than from the log that followed. The same order rejected a subpoenaed law firm's reliance on the parties' ESI protocol to redact produced emails for non-responsiveness, sending two of them for in camera review.
What Happened
Plaintiffs subpoenaed a law firm representing the defendants. At a meet-and-confer the firm gave plaintiffs its custodians and the terms it intended to run, while maintaining that a non-party owed no duty to disclose either. Plaintiffs voiced no objection then.
The production ran to ten documents, two of them email strings carrying partial redactions for non-responsiveness. The firm served a two-entry privilege log two weeks afterward. Plaintiffs then wrote identifying flaws in the terms, including wrong email domains. Their motion followed, seeking a second search on their own terms along with unredacted copies of the two emails.
The Court's Analysis
The District of Kansas gives a party 30 days to bring a discovery motion, measured from a default or from service of the response, objection, or disclosure at issue, or for other disputes from the point the movant "knew or reasonably should have known of the potential dispute." A motion filed later can be denied unless the movant demonstrates diligence in resolving that specific dispute.
Plaintiffs argued the deadline ran from the privilege log, because only a log that short revealed a flawed collection rather than privilege withholding. The court set the trigger at the production instead, dating it from the day plaintiffs could open the files. Plaintiffs had held the custodians and the terms for weeks. They offered no compelling explanation for failing to dispute them then, the court stated. Their own motion described the production's size and scope as raising concerns immediately. The later privilege log was not a supplemental production capable of extending the deadline, the court reasoned. On the court's calculation the motion was due May 12. It arrived on May 22, so the search-term request was denied as untimely.
The court added that even a timely challenge would have failed on the merits. Its order recited the heightened protection non-parties responding to Rule 45 subpoenas generally receive from discovery abuses, along with the additional concerns raised by a subpoena aimed at the opposing party's current counsel. Even so, a recipient owes a duty to make a reasonable inquiry into whether the requested documents exist and to respond appropriately. Running these terms against its custodians satisfied that duty, in the court's view. Plaintiffs offered only speculation that the terms alone explained the small production, the court stated. Weighing that speculation against the cost of a second collection and review, it concluded the burden outweighed the likely benefit.
The firm defended its non-responsiveness redactions under the ESI protocol entered in the case, arguing that the protocol's search-term negotiation provisions did not reach a non-party while its redaction provision did. That argument was contradictory, the court stated. On the court's reading the protocol appears to apply only to the parties, so it would not cover the firm. Even if it did, the court continued, the provision permits non-responsive redactions only on parent emails. The redaction half of the motion was timely, the court concluded, because that dispute arose from the April 24 log itself. Unable to tell from the unredacted text whether the covered material was merely non-responsive, it ordered the two strings submitted for in camera review.
Why It Matters
The court measured the 30 days from the production, not from the log that followed. The disclosure of custodians and terms is still the event to calendar, because the court faulted plaintiffs for not challenging them when they arrived. Plaintiffs here waited for the privilege log to sort privilege from collection. By the time they moved, the search-term challenge was out of time, even though the same log kept the redaction dispute alive.
Diligence is the exception that saves a late motion. The movant carries the burden of showing it. Plaintiffs here requested a pre-motion discovery conference before filing. The court still concluded they had not carried that burden. The effort has to be documented as it happens, not reconstructed after the deadline has run.
A non-party that wants a protocol's protections should expect to take its obligations too. The firm here disclaimed the protocol's search-term provisions, then claimed its redaction provision, which the court called contradictory. A subpoena recipient who wants protocol treatment is better off negotiating for it before the collection starts.
The full opinion is available as a PDF.
