Court Orders Defendant to Disclose ESI Search Methodology Prior to Discovery Production
In Baranco v. Ford Motor Company, Case No. 17-cv-03580-EMC (N.D. Ca April 10, 2018), the United States District Court for the Northern District of California ordered Defendant to disclose its ESI search methodology to Plaintiff before collecting and producing discovery to allow Plaintiff a reasonable opportunity to provide input to the chosen methodology as part of the meet-and-confer process.
The court observed that when search terms are used in ESI discovery, the parties should cooperate to select reasonable search terms and conditions. In this case, Defendant used search terms and other undisclosed collection methods it claimed were more efficient but did not want to disclose to Plaintiff.
In its Motion, Plaintiff seeks only information about what methods Defendant intended to use in its search and collection; Plaintiff did not seek to compel Defendant to use a particular method. In response, Defendant argued that its non-ESI search term methods fell under the attorney-client or attorney work product privilege.
The court ruled in favor of Plaintiff, stating that the purpose of meeting and conferring before a party collects and produces documents is to minimize the risk of an inadequate search. Specifically, the court writes that transparency and cooperation before document collection promotes efficiency by reducing the risk that after-the-fact disputes will necessitate costly second and third searches. Utilizing colorful language, the court stated that “Plaintiffs are entitled to tell [Defendant] that searching the kitchen pantry for spare tires will likely be inadequate. And [Defendant] might counter that it will also search the garage. The point is that these discussions should occur before expensive searches and depositions.”
Accordingly, the court ordered Defendant to disclose its search methodology, including the identity of its custodians, so that Plaintiff has a reasonable opportunity to provide input, objections, or suggestions as part of the meet-and-confer process. Finally, the court ordered Defendant to disclose its basis for believing that its proposed search is proportional, adequate, and likely not to exclude responsive documents.