Proportionality analysis is making its way into judicial opinions with outright citing the Federal Rules of Civil Procedure. US District Court Judge Robert Bryan in Washington limited additional searches of email based on proportionality and overbroad search requests. Moore v. Lowe’s Home Ctrs., LLC (W.D.Wash. Feb. 19, 2016, No. 14-1459 RJB) 2016 U.S. Dist. LEXIS 20630, at *14-16.
The Plaintiff argued that the Defendant’s email searches were inadequate, because the Plaintiff had emails in their possession that the Defendant did not produce. Moore, at *14. The Plaintiff made the next logical argument that 1) the Defendant should demonstrate that it has done a diligent search; and 2) Defendant should conduct additional searches using terms requested by Plaintiff. Id.
The Plaintiff argued that the new searches should have been conducted without the Plaintiff’s first and last name on each of the witnesses’ email accounts. Id.
That sounds like a totally normal course of action. Unfortunately, the Court did not agree.
The Defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074. The Defendant further argued that the relevant emails from 2012 were likely deleted. Furthermore, the Defendant had conducted the searches, review, and interviews to find similar claims to that of the Plaintiff. Moore, at *14-15.
Here is the crux of the Defendant’s argument: Using 88 new search terms that included annoy*, bull, click*, dad, date*, hand, rack, rod, box, would result in hundreds of thousands of irrelevant emails. Moore, at *15.
Judge Bryan held:
Plaintiff’s request for email searches is overly broad and not proportional to the case. Plaintiff refers to a multi-plaintiff case to support her assertion that Defendant should conduct searches without using Plaintiff’s name. Searching without the use of Plaintiff’s name would not be proportional in this single-plaintiff case. While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.
Moore, at *15-16.
Bow Tie Thoughts
I understand the Judge’s order, but would have recommended a meet and confer over search terms. In my experience, having ONLY 21,000 emails from 17 custodians is a very tiny amount of data. I have worked on cases with 6 to 10 people generating over 300,000 emails on more than a few cases. Given the fact the case involved a single plaintiff, it is very likely that is a reasonable amount of email. A lot would turn on the amount of time the email communications covered.
It is not clear if either side had experts explaining the search terms in affidavits. I agree 88 search terms that include terms like “hand” would generate overly broad results, unless it was limited, such as by specific dates or individuals. It might have been a better plan to bring a motion to compel search strings opposed to individual terms. The results could have been validated with a search term efficiency report, so the attorneys would know how many results would be generated by each search. For there, the parties could negotiate down to what would be reasonable search string requests. However, it is tough to know if that would be the right plan without more information on the case.
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.