Plaintiff in McMaster v. Kohl’s Dep’t Stores, No. 18-13875, (E.D. Mich. Jul. 24, 2020), filed a claim for wrongful termination under the American With Disabilities Act (“ADA”) against Kohl’s Department Store. Before the Court was Plaintiff’s Second Motion to Compel Discovery. Among the various discovery issues disputed by the parties were competing search term lists and an interrogatory propounded by Plaintiff’s seeking a description of Defendant’s methodology for searching and producing responsive ESI.
With regards to the search terms, in explaining his reluctance to decide the parties’ search term dispute, the Magistrate Judge cited to United States v. O’Keefe, 537 F. Supp. 2d 14, 23-24 (D.D.C. 2008), which addressed complexities of formulating search terms:
“Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics…Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” Id..”
Against the backdrop of O’Keefe, the Magistrate Judge stated that “I, for one, have no interest in going where angels fear to tread.” Accordingly, the Magistrate Judge ruled that if the parties could not agree on the search terms, they would share the cost of retaining an expert to assist them. And, if they still could not agree, Plaintiff could renew his motion regarding the search terms and provide the Court with an expert report substantiating his position.
As to Plaintiff’s interrogatory regarding a description of Defendant’s search and production methodology, the Court ruled that the better forum to resolve the interrogatory would be the parties’ meet and confer sessions with the assistance of the experts.