Whose Search Term is it Anyway?

confusedIn Spieker v. Cherokee, 2008 U.S. Dist. LEXIS 88103 (D. Kan. Oct. 30, 2008), the parties became entangled in a dispute over who created search terms for a set of specific discovery requests.

 The Plaintiff had served the Defendant with specifically defined Federal Rule of Civil Procedure Rule 34 requests for email and other electronically stored information.  The Defendant claimed the suggested search terms were “not specific enough” for a discovery production.  Spieker, 9.

 The Court found that since the ESI was created, stored, and/or maintained by the Defendant, they were in the “better position to develop the most appropriate list of search terms to produce” the requested electronically stored information. Spieker, 9.

 A producing party cannot escape its burden of production by claiming that the requesting party’s suggested search terms were “not specific enough.” As such, producing parties should modify search terms if those terms need to be more specific to answer a requesting party’s specific production requests. Spieker, 9.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

  1. Good post – really shows the unnecessary costs that clients will pay when their counsel don’t take the obligation to continually meet and confer (to some, “collaborate”) seriously.