Easing the Search Burden in eDiscovery with Expert Advice
Search-related conflicts can still be stumbling blocks in the litigation process.
Searches of electronically stored information (ESI) for eDiscovery continue to be a source of contention between parties in litigation. The crux of the parties’ arguments boil down to the same old questions: Are opposing party’s search terms reasonable? Are the proper custodians being searched? Is the scope too broad? Too narrow?
Despite efforts to reduce points of contention through various protocols and Rules changes (read: Proportionality), parties still go so far as to compel particular terms to be run on an opposing party’s data and request sanctions when they believe they haven’t produced ESI responsive to discovery requests. Having to involve a court in eDiscovery matters is never desirable for a party in litigation, but such challenges continue to come before judges and, needless to say, they don’t much like it.
According to the Sedona Principles (Principle 6), parties are best situated to evaluate their own search terms, and the process should be iterative through the meet and confer process as more information is gathered about the nature of the data population. In addition, Federal Rule 26(b)(1) requires parties to produce responsive information relative to their resources, based on the importance of the discovery and proportional burden or expense to the likely benefit of the evidence in resolving the issues. Courts expect parties to work together on eDiscovery and to agree on the scope of searches; ideally everyone will play nice and it will all work out. But litigation is a naturally contentious process. Even with the best intentions, parties are sometimes unable to agree and end up arguing motions to compel.
Recent cases show common struggles.
A few recent cases tell the tale. In In Re: Qualcomm Litigation, Qualcomm believed the opposing’s discovery plan was deficient and sought to compel them to search particular custodians using specified search terms. In Firefighters’ Retirement System, et al. v. Citco Group Limited, et al., Civil Action No. 13-373-SDD-EWD, plaintiffs conducted a 30(b)(6) deposition of one of the defendant’s employees responsible for the collection of ESI and then brought a motion to compel additional custodians and search terms. The courts in these cases denied the motions, aligning conceptually with the Sedona Principles. Unfortunately, this was after the producing parties incurred the time and expense of responding to motions to compel and, in the case of Firefighters Retirement System, also producing and defending the deposition of a 30(b)(6) witness.
In Cen Com., Inc. v. Numerex Corp., defendants sought to compel enumerated search terms be run on plaintiffs’ ESI. Though the plaintiffs argued the search terms were irrelevant to the matter, the court disagreed and granted the motion, recalling that the plaintiffs had not indicated the terms were overly burdensome or privileged. Thus the plaintiffs were placed in a position where they were forced to run an opposing party’s search terms on their data.
Avoiding motions to compel.
Appearing in a courtroom to respond to motions to compel search terms is not the ideal situation for parties to be in. It wastes time and resources and is a source of frustration for everyone involved—especially the judge. A more effective approach, especially in complex cases with large data volumes, is to consider a professional evaluation by search experts, who can provide a solid foundation for decision-making. If an opposing party aggressively questions a client’s search terms, a search expert can thoroughly explain the linguistic rationale upon which the search terms rely, even providing techniques to sample the data and prove the point. This has more than once been used to take the steam out of the opposing’s arguments. Likewise, search experts can also reflect on the reasonableness of the opposing’s search terms, providing valuable insight into their probably efficacy.
So, when evaluating complex eDiscovery situations that require the development of search terms and parameters, an expert consultation in advance can give parties the satisfaction of knowing their search terms and scope are indisputable. Such consultations provide the up-front wisdom that enables parties to avoid unnecessary courtroom battles over motions to compel, saving time, money, and not least, the ire of the judge.
Ashley Canales is a consultant with the H5 Professional Services Group where she specializes in information retrieval and subject matter analysis to support client needs.
Click here to learn more about search term consultation based on sound linguistic principles and adherence to court approved standards.