Tudor v. State Farm General Insurance Co., No. 22-cv-01113-RFL (PHK) (N.D. Cal. Oct. 28, 2026), full opinion (PDF)
Before ordering a search of a proposed custodian's files, a court can have the producing party ask that person whether they hold responsive ESI. A federal magistrate judge took that approach in a suit against an insurer over the denial of a claim. The insurer reported that ten of the eleven people the plaintiff proposed held nothing outside its production. No one at the insurer recognized the eleventh name. The court denied a request for a manual search of those eleven people's files and rejected 32 further names offered without a specific basis.
What happened
An earlier order directed the insurer to contact the people the plaintiff identified. For each one, the insurer had to confirm that the person held no responsive ESI or add the person as a custodian.
At a discovery conference in October, the insurer reported that its inquiry was substantially complete. According to the insurer, the current employees it contacted and the former employees on the list held nothing beyond what the production already contained. No one at the insurer recognized one of the eleven names. The insurer also committed to produce any responsive documents that further conversations turned up.
The plaintiff argued that the insurer's report fell short of a full investigation. She asked the court to order a manual search of all eleven people's files. In September, she had also asked the insurer to make the same inquiry of 32 more people.
A separate dispute concerned instant messages. The insurer represented that it had produced every instant message about the claim. The plaintiff asserted that one message referred to a potential follow-up phone call between two employees. She sought phone logs for the four employees who might have taken part. The order also resolved confidentiality and interrogatory disputes unrelated to ESI.
The court's analysis
The court denied the manual search as not proportional to the needs of the case, and as moot in light of the insurer's report. Its earlier order, the court explained, was meant to determine whether anyone outside the existing custodians could reasonably be found to have additional responsive documents. Because the insurer had already produced thousands of pages, the court had not ordered a full search. In the court's view, the inquiry was a proportional step before requiring the insurer to spend resources searching for documents that might not exist.
The court rejected the 32 additional names because the plaintiff identified nothing more than suspicion that they might hold responsive documents. The court presumed that the plaintiff chose the original eleven in good faith after reasonable investigation. Common sense, the court reasoned, indicated they were her most likely or most desired custodians. Its earlier order, the court stated, did not give her an open-ended invitation to keep adding names. In the court's view, the unrecognized name among the eleven undercut counsel's credibility in seeking 32 more. Adding names in successive rounds, the court observed, gave the appearance of a fishing expedition.
The phone log request failed because the insurer agreed not to dispute the call if a witness testified at deposition that it occurred. That representation, the court concluded, entirely removed the need for the logs to prove that the call took place. The court denied the request for several years of metadata and phone logs as not proportional. Instead, the court ordered the insurer to ask the four employees whether they remembered such a call. As the insurer agreed, it must share the answers with the plaintiff's counsel informally.
Why it matters
A requesting party seeking more custodians should tie each name to the record. A document that mentions the person, or the person's role in the decision at issue, can supply that link. The first list deserves the strongest candidates, since a court may presume that list holds the most likely custodians. Each name should also be checked before the list goes out. One name the producing party cannot identify can undercut counsel's credibility when asking for more.
A producing party facing a demand to search proposed custodians' files can offer to ask those people first whether they hold responsive ESI. Its report should account for every name, including any it cannot identify. A commitment to produce anything found later leaves the requesting party less room to argue that the inquiry was incomplete. Names offered with no basis in the record can be opposed on that ground.
When ESI is sought only to prove that an event happened, a concession that the event happened can make the ESI unnecessary. A producing party facing a broad request for logs or metadata can offer that concession, tied to the testimony it expects. A requesting party should be ready to explain what the ESI would show beyond the bare fact. Otherwise a court may substitute a simple question put to the witnesses.
The full opinion is available as a PDF.
