In Shannon v. Honeywell Federal Manufacturing & Technologies, LLC., No. 4:17-CV-00787-DGK (W.D. Wi, July 20, 2018), the United States District Court for the Western District of Wisconsin granted Plaintiff’s Motion to Compel Defendant to run a search of Defendant’s Electronically Stored Information (“ESI”) using Plaintiff’s proposed search terms, finding Plaintiff’s proposed search terms proportional to the needs of the case.
Plaintiff filed an employment discrimination suit against Defendant based on alleged discriminatory acts committed during Plaintiff’s four-year employment with Defendant. During discovery, the parties partnered to determine appropriate search terms to search Defendant’s ESI. Despite the parties’ collaboration, the parties failed to agree on the proper search terms to be used in responding to Plaintiff’s document requests. In conducting its first ESI search, Defendant ran a search using its own search terms, and while the terms resulted in 2,484 search hits, it yielded only 12 unique documents. Plaintiff then filed a Motion to Compel Defendant to run a search using the Plaintiff’s proposed search terms.
In its Motion, Plaintiff argued that Defendant’s search terms were too limited and asked the court to compel Defendant to run an ESI search using its terms. Specifically, Plaintiff proposed search terms rely on the less restrictive “or” boolean connector, while Defendant’s original search utilized an “and” connector. At the outset, the court held that relevant ESI material may be discovered by using a less restrictive search and thus, Plaintiff’s proposed search terms are more likely to return relevant discoverable material.
The crux of the matter, according to the court, is whether the proposed search terms are proportional to the needs of the case under FRCP 26(b)(1). While the court finds persuasive that Plaintiff’s employment with Defendant lasted over four years and that the estimated damages are over $100,000, Defendant has sole access to their ESI and the resources available to run the search and produce any relevant documents. Interestingly, the court notes that although the Defendant’s estimated expense to run the search would be over $23,000, this estimated expense did not outweigh the likely benefit of producing any relevant documents. Given those facts, the Court held that executing a search of Defendant’s ESI utilizing Plaintiff’s proposed search terms was proportional to the needs of the case and thus, granted Plaintiff’s motion.