Representative Examples of Search Hits Ordered In Discovery Dispute
- ILS Team
In Taylor v. Shutterfly, Inc., Case No. 18-cv-00266-BLF (VKD) (N.D. Cal. Sep. 2, 2020), the issue before the Court was the parties’ dispute concerning the application of search terms to Defendant Shutterfly’s ESI collection.
The case arose from Plaintiff’s claim that Shutterfly placed misleading advertisements on Groupon’s website. In addition to seven agreed upon search strings, Plaintiff also requested that Defendant apply the standalone term “Groupon” to its ESI collection. Defendant objected that the application of that term would yield an excessive number of irrelevant and non-responsive documents and would not be proportional to the needs of the case, specifically, that it would cost $25,000 and more than a week to review the 21,705 documents hit by the “Groupon” search term.
In response, Plaintiff asked Defendant to produce a random sampling of 25 documents from those hit by the “Groupon” search term in order to evaluate Defendant’s claim that the term would result in an excessive number of irrelevant documents for review. Defendant objected to that proposal, arguing that even if the documents were produced under the terms of the parties’ protective order, the documents were commercially sensitive, and that Plaintiff would use what they see as a basis to bring other cases or expand the current case.
The Court agreed that application of the standalone “Groupon” term would not be proportional to the needs of the case in light of the other searches Defendant agreed to. However, the Court also found that Defendant did not sufficient information to permit Plaintiff to propose an alternative search string that could limit the ESI collection for review. Accordingly, from the 21,705 unique “Groupon” documents, Defendant was ordered to provide representative examples of non-responsive documents that refer to Groupon deals other than the Groupon deals at issue in the case as well as representative examples of responsive document from the same “Groupon” collection that did refer to the Groupon deal at issue. The Court did not specify what the number of representative examples should be, only stating that the parties should be able to agree on a number necessary for their discussion.