Just Because A Search Will Produce More Documents Than Are Relevant Does Not Excuse Failing To Conduct A Search Rules Magistrate Judge
- ILS Team
Before the Magistrate Judge in Hardman v. Unified Gov’t of Wyandotte Cnty., Case No. 19-2251-KHV-TJJ (D. Kan. Aug. 10, 2020) were a myriad of discovery disputes presented in Plaintiff’s motion to compel. Among others, Plaintiff moved for an order requiring Defendant to conduct searches using certain key words and for Defendant to include the email accounts of its in-house counsel in its searches for responsive documents.
One of Plaintiff’s requests was for Defendant to conduct searches using the terms “Hardman,” “Jordan Hardman,” and “Jordan,” variations on Plaintiff’s name. Defendant objected to searching for “Jordan” because it had already researched for “Hardman” and “Jordan Hardman” and searching for “Jordan” would be duplicative. Plaintiff asserted that Defendant should use the search term “Jordan” because in some of the documents that Defendant produced, Plaintiff is referred to only as “Jordan” rather than “Jordan Hardman” or “Hardman.” Defendant argued that “Jordan” is “relatively common name” and would yield results for emails pertaining to other employees named Jordan.
The Magistrate Judge noted, however, that Defendant did not give any specific examples showing that there were other employees named Jordan, and the argument that Jordan is a “relatively common name” did not justify failing to conduct a search. “If it did, no one would have to search for documents involving any person with a common name. Additionally, just because a search will produce more documents than are relevant does not excuse failing to conduct the search.” Accordingly, Defendant was ordered to search for the term “Jordan” but would be permitted to produce those emails or other information pertaining to Plaintiff, rather than any other employee named Jordan.
Plaintiff also requested that Defendant search the email accounts of its in-house counsel using the same search terms. Plaintiff claimed that Defendant’s in-house counsel was “directly” and “intimately” involved in the decision to terminate Plaintiff’s employment. Despite Defendant’s blanket objection that all communications of its in-house counsel are privileged, the Magistrate Judge ruled that “for the privilege to apply, legal advice must predominate. The privilege does not apply where legal advice is merely incidental to business advice. Underlying facts do not become privileged by relaying them to an attorney.” Accordingly, Defendant’s blanket claim of privilege did not satisfy it burden, as the asserting party, of establishing the applicability of the attorney-client privilege, and did not relieve Defendant of its responsibility to search the emails and electronic files of its in-house counsel.