Most Agreed Orders regarding electronically stored information (ESI) state that the parties shall agree upon search terms to produce relevant data. However, obtaining an agreement on search terms is sometimes easier said than done in contentious litigation.
In The Shaw Group Inc. v. Zurich American Insurance Company, et al., Civil Action No. 12-257-JJB-RLB (M.D.La., September 3, 2014), Plaintiff sued defendant, its insurance carrier, for breach of contract and bad faith. By Agreed Protective Order dated September 25, 2013, the parties were to come up with a list of search terms of Plaintiff’s database for the ESI production. On December 10, 2013, Defendant served a Request for Production for plaintiff ESI.
On January 24, 2014, Defendant sent a proposed list of search terms for five custodians. The list of 90 search terms included the names of entities of the underlying insurance claim lawsuit and included broad terms such as settlement, settle, mediation, mediator, claims, defense, deductible, attorney fees, etc. as just a few examples. Plaintiff objected to these terms as overly broad and unreasonable, claiming that such terms would generate 103,202 emails with 20,000 attachments. The estimated time and cost of review would be 10-14 weeks at $550,000 to $650,000.
Plaintiff suggested its own list of 28 search terms, including all the insurance policy numbers and names of the excess insurers, which was based on prior search terms used in the underlying case’s subrogation litigation. Defendant refused to alter its proposed search terms and filed a Motion to Compel on July 7, 2014, only four days before the discovery deadline. Plaintiff responded with a Motion for Protective Order to use its own proposed search terms.
The court first chastised Defendant for filing a Motion to Compel late and so close to discovery closing. The court also noted that failing to reach an agreement on search terms did not relieve Plaintiff from fulfilling its discovery obligations by the deadline. However, in resolving the search term dispute, the court agreed Defendant’s proposed terms were unreasonable. The court found Plaintiff’s terms were more appropriately tailored to produce relevant ESI and less likely to produce irrelevant documents. Therefore, Plaintiff was ordered to produce the ESI using their own suggested search terms.
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