Sometimes, it takes a Court order to cool the fiery passions of litigation.
In a RICO action in the packaged ice industry, the Defendant sought to chill the cost of searching 4 Terabytes of data. McNulty v. Reddy Ice Holdings, Inc., 2011 U.S. Dist. LEXIS 3173, 6-7 ( E.D. Mich. Jan. 13, 2011).
Both parties claimed the moral high ground in conferring over search terms. McNulty, at *6-7. However, the Defendant sought an order for the Plaintiff to work with the Defendant and “its electronic discovery consultant to try to come up with an agreed scope and means for conducting searches for the requested documents in identifiable sub-populations of Home City’s ESI…” McNulty, at *3-4.
4 Terabytes is a mind-numbing volume of data.
The Court noted in a footnote that a Terabyte is nearly 220 million pages of printed text. McNulty, at *4, fn 1.
As such, 4 Terabytes would be 880 million pages of text.
If reviewed as standard boxes of paper, one can estimate a human being can review 60 pages an hour, which would add to 480 a day. Reviewing 880,000,000 pages of text would take approximately 13,333,333.33 hours.
And that is just first pass review.
The Court’s power to cool off discovery is pursuant to Federal Rule of Civil Procedure Rule 26(b)(2)(B), which states in relevant part:
Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
McNulty, at *5.
The Court was not about to order the searching of potentially responsive data to be put in the freezer. The Court observed the Plaintiff had good cause for requesting the search of the Defendant’s data. McNulty, at *6. Moreover, the Court had the authority under the Federal Rules of Civil Procedure to “‘specify conditions for discovery,’ including requiring the Plaintiff to provide more narrowly focused search terms, and other courts have so ordered.” McNulty, at *6.
The Plaintiff was willing to work with the Defendant in drafting search terms and defining custodians. McNulty, at *6. However, the Court stated there had been no cooperation based on “mutual recriminations of intransigence.” McNulty, at *6-7.
As the Court so curtly observed, “That will change with this Order.” McNulty, at *7.
The Court ordered the parties to meet and confer, in good faith, to develop search terms for the Defendant’s reasonably accessible ESI. McNulty, at *7. The Plaintiff was also directed to provide “reasonably fashioned search terms and criteria.” McNulty, at *7.
Bow Tie Thoughts
Across the United States, Federal Magistrate Judges know what they are doing when it comes to e-Discovery. The age of parties in Federal Court dragging their heels on search terms is drawing to its end.
There are several interesting things about the McNulty opinion:
Magistrate Judge R. Steven Whalen understands Federal Rule of Civil Procedure Rule 26(b)(2)(B). This is indicative of other judges across the country.
Cooperation in the development of search terms is pivotal in discovery.
Electronic discovery consultants are a fact of life when dealing with large volumes of ESI.
Opinions such as McNulty give me a lot of hope in how the Courts are evolving in their understanding of electronically stored information. While the parties needed the helping hand of the Court to cooperate, this opinion illustrates a positive trend.
Thanks Josh for another well summarized update. I must, however, respectfully disagree with your conclusion that “Magistrate Judge R. Steven Whalen understands Federal Rule of Civil Procedure Rule 26(b)(2)(B).”
Judge Whalen’s order fails to address the responding defendant’s responsibilities in the give and take of coming up with a search protocol and developing search terms, if appropriate. Judge Whalen ordered the parties to meet and confer, but specifically ordered “As part of this meet-and-confer, Plaintiff will provide for discussion reasonably fashioned search terms and criteria.” Other cases hold that the responding party, rather than the producing party, is in the best position to understand its own data and make the first proposal as to the protocol and search terms, if appropriate. See, e.g., Wm. A. Gross Constr. v. Am. Mfg. Mutual Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009).
Judge Whalen further fails to address the use of sampling and search term hit reports to improve recall (i.e., reduce the return of false positives, and increase the return of true positives from the 4 TB data population). This can be an essential component in obtaining the balance between Rule 1, seeking to reduce costs and burdens of litigation, and Rule 26, the rights of a party to receive discovery of relevant documents and other materials.
I do agree with your assessment that Judge Whalen’s understanding of Rule 26(b)(2)(B) is in line with the of courts in general. However, I would say this is a basic understanding of the Rule, without any real knowledge as to the technical and practical difficulties of crafting search protocols, and particularly using search terms, if and as appropriate, to reduce costs and increase efficiencies in finding relevant documents in large hetrogeneous data sets.
Best regards,
— Eric