Plan Ahead for Challenges Due to Relevance and Overbreadth
The initial list of search terms to be used to cull and produce hot documents from electronically stored information (ESI) is a critical stage of the eDiscovery process. Every case will be unique, and there is no “one size fits all” approach for search terms. However, one thing is for certain: parties frequently will object to the other side’s requested search terms based on relevance and overbreadth. These potential objections should be in mind when drafting proposed search terms to be able to respond to these typical complaints. Below are some recent case opinions throughout the country that dealt with search term disputes in civil litigation.
- National Credit Union Administration Board v. Basconi et. al., Case No. 16-455 (N.D. Ohio, Feb. 27, 2017). Defendants produced a deficient document discovery, in part because it admittedly failed to use any search terms whatsoever. The court ordered Defendant to produce search terms and to redo the ESI production.
- Diesel Power Source et. al. v. Crazy Carl’s Turbos et. al., Case No. 14-826 (D. Utah, Feb. 23, 2017). The parties were embroiled in a contentious dispute over search terms. Plaintiff filed a sanctions motion for Defendant’s failure to compel production of documents. However, the court held the Plaintiff’s proposed search terms were overly generic and placed an undue burden on Defendant. Then Plaintiff proposed five more search terms, but with a total of 75 phrases to account for misspellings. Defendant sought sanctions based on the number of requested search terms. The court found both parties to be at fault, ordered Plaintiff narrow the search term request to 20 and declined to enter sanctions against either party at that time.
- Martinelli et. al. v. Johnson & Johnson et. al., Case No. 15-1733 (E.D. Cali., Feb. 10, 2017). Even though the parties had agreed to an ESI Protocol Order to fulfill discovery obligations, the court agreed this order did not limit the production to those documents found by the initial set of search terms. The court ordered a meet and confer to have the parties agree upon additional search terms to conduct an additional search and produce more relevant documents.
- Venturdyne, Ltd. d/b/a Scientific Dust Collectors v. Carbonyx, Inc., d/b/a Carbonyx Carbon Technologies, et. al., Case No. 14-00351 (N.D. Ind., Nov. 15, 2016). Although noting that overbroad search terms can result in a number of irrelevant documents, the court held Defendant failed to meet its burden of showing Plaintiff’s search term request was inappropriate. Defendant had not objected to 78 of 128 proposed search terms, so the court ordered another search based on those 78 terms.
- Flowrider Surf, Ltd., et. al. v. Pacific Surf Designs, Inc., Case No. 15-1879 (S.D. Cali., Nov. 3, 2016). Defendants sought all the documents produced from Plaintiff’s ESI search, even though Plaintiff was claiming privilege and relevance to deny production of certain documents. After a hearing, the court agreed with Plaintiff that simply because the documents were “hit” from the search terms does not mean that Plaintiff could not subject them to further review for relevance and privilege.
- AVM Technologies, LLC v. Intel Corp., Case No. 15-00033 (D. Delaware, May 3, 2016). Plaintiff sought certain search terms to use on Defendant’s database, while Defendant claimed were too general and would necessitate discovery review for earlier products than the one at issue. The court agreed that the request was overbroad and would likely result in numerous irrelevant documents.
Speak to Our Plaintiff ESI Experts Early in the Case
The potential for search term disputes will decrease when an experienced eDiscovery vendor is working with the plaintiff trial attorneys before filing the case. We work closely to manage discovery in complex class actions, MDLs and international litigations. We offer consulting services by our electronic discovery attorneys from the very beginning of the case to ensure proper litigation holds and correct ESI production requests are set forth from the start. We also have a great deal of experience joining ongoing litigation when eDiscovery becomes problematic. Reach out by calling us directly at (888) 313-4457 or via email at [email protected].