Plaintiff May Explore Ford Motor Co.’s Search and Collection Methodology
In Burd v. Ford Motor Company, Case No. 13-20976 (S.D. W.Va., July 8, 2015), Plaintiffs allege they sustained injuries in Defendant Ford’s vehicles due to unintended acceleration accidents. At a discovery conference, Plaintiffs questioned whether Defendant had conducted reasonable collections and searches of ESI in response to Plaintiffs’ document requests.
Defendant asserted that it had conducted a “sweep” of emails of certain key document custodians, in which individual employees familiar with the case and Plaintiffs’ claims determined which emails to produce by using search terms. Deposition testimony, however, revealed that certain of these employees had performed limited searches or had not performed any searches at all. Defendant refused to share the search terms the employees used, claiming that each individual employee had used their own unique set of search terms, such that providing those terms would constitute overly burdensome “discovery upon discovery.”
The Southern District of West Virginia chided Defendant, noting that “discovery upon discovery” objections are outmoded and unpersuasive. The court found that Defendant had failed to provide any specific facts regarding its search and compilation of responsive documents. Defendant also failed to “expressly state the nature of the variations and limitations” in some of the employee searches and instead simply asserted the work product protection. The court held that the work product protection could not protect the search terms from disclosure because Defendant could disclose the search terms “without revealing the substance of discussions with counsel.” Accordingly, the court ordered that Defendant must produce a witness for deposition regarding its search and collection methodology.