The adequacy of searches for electronically stored information is often a challenge technically and procedurally for attorneys. The case of Mullen v. United States Army Crim. Investigation Command directly outlined how to evaluate whether a search was adequate.
Searching for Adequacy & Reasonableness
A search for responsive discovery is reviewed on whether the proffering party has “demonstrated that it has conducted a search reasonably calculated to uncover all relevant documents.” Mullen v. United States Army Crim. Investigation Command, 2012 U.S. Dist. LEXIS 93977, 12-15 (E.D. Va. July 6, 2012), citing Rein v. United States PTO, 553 F.3d 353, 362-63 (4th Cir. Va. 2009).
The producing party can demonstrate an adequate search with the following:
…[An] affidavit [that is] reasonably detailed, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched so as to give the requesting party an opportunity to challenge the adequacy of the search.
Mullen, at *13, citing Rein at 362-63.
The Producing Party (a Federal agency) had their Chief of the Freedom of Information Act and Privacy Act Division state in an affidavit the four databases she searched. The affidavit also included the three search terms, which included the Plaintiff’s name, Social Security number and the term “Unconventional Concepts, Inc.” The affidavit also included the sources of the documents produced pursuant to the request. Mullen, at *13.
The Plaintiff argued that the affidavit only included general statements on the Producing Party’s search. The Court rejected this argument, saying it was “simply wrong,” because the Producing Party explained the searches for the FOIA request with the search terms used in the search and the sources that were searched. Mullen, at *13-14.
Based on the information stated in the Defendant’s affidavit, the Court concluded the Producing Party conducted a reasonable search.
Bow Tie Thoughts
Before discussing search adequacy, it is important to state the gravity of discussing search terms and methodology in the meet and confer process. While it is a given disputes come naturally in litigation, parties working together to develop search terms and methodologies can reduce motion practice.
The general rule on challenging the adequacy of a search is to present expert testimony that would allow the court to conclude that a producing party’s search was inadequate (See, Culler v. Shinseki, 2011 U.S. Dist. LEXIS 96043, 25-26 (M.D. Pa. Aug. 26, 2011)).
Such a challenge usually would be after a production from a producing party and there is evidence of a search deficiency, such as specific ESI was not produced. There are other situations where it could arise, but it is important for a challenge that a search was not reasonable to be ripe and not speculation.
There are many forms such expert testimony may take. An expert might state there was a failure to include acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues (See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f), p127 (2011-2012 Ed.)). However, to keep the challenge from being merely speculation a search was inadequate, an expert might include specific examples of ESI that was not produced. Another strategy could be to show certain buzzwords appear in ESI that was produced, but those terms were not used in the search. As such, those buzzwords would need to be added as search terms (or a search string) to ensure the search was adequate.
A producing party can show the reasonableness of their searches, thus their adequacy, with documentation of their process and that their technology was used correctly. For example, such documentation may include 1) the search terms used to identify the responsive ESI; 2) how the search terms were determined; 3) explain how the technology was used to conduct the searches; 4) state the qualifications of the person who conducted the search; and 5) describe the different data sources that were searched.
There are other ways the reasonableness of a search can be demonstrated, but the best description of the standard might be from Judge Facciola’s Peskoff v Faber, where the Court ordered an evidentary hearing on the adequacy of searches:
“I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.”
Peskoff v Faber, 240 F.R.D. 26, 31 (D.D.C. 2007).