The parties who provided payment mechanisms for drivers of rental cars to pay highway tolls agreed to produce ESI responsive to the following search terms:
Smartphone /50 toll!
Smartphone /50 threat
Smartphone /10 app!
Phone! /10 app!
Double /10 bill
Bancpass, Inc. v. Highway Toll Admin., LLC, No. A-14-CV-1062-SS, 2016 U.S. Dist. LEXIS 96978, at *3-4 (W.D. Tex. July 26, 2016).
The Producing Party learned they took a wrong turn with this plan codified in an email exchange with the opposing party. The search terms had 20,000 non-privileged and non-responsive hits. Bancpass, Inc., at *6. The Producing Party de-duplicated the search results against a prior production, ran searches to exclude irrelevant documents, and reduced the number of hits to 3,489. After reviewing for responsiveness and privilege, they produced 34 unique ESI “hits” to the opposing side. Bancpass, Inc., at *6-7.
The Requesting Party argued the email exchange between the parties was a binding agreement to produce all email responsive to the search terms. The Court explained why that was not appropriate in denying their motion:
If the Court were to construe the parties’ email correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the e-mail chain is that the parties agreed to produce all of the results of the searches save privileged documents. But the parties’ e-mail exchange is not a contract. Rather, it was a means to simplify and limit the scope of production responsive to BancPass’s requests for production 6, 11, 29, 38, 39, and 45. Having reviewed the attached affidavits detailing HTA’s search and review process there is no reason to believe that HTA has withheld documents it was obligated to produce. Nor is it clear that additional searches with the identified search terms would produce more documents responsive to BancPass’s requests for production. Accordingly, as to the search terms, BancPass’s motion is denied.
Bancpass, Inc., at *8-9.
Bow Tie Thoughts
Determining the scope of discovery is an excellent strategy to narrow the universe of ESI to what is truly relevant. However, this is a process that requires analyzing more than just keywords. What are the relevant date ranges? Who are the key individuals in the case? In what context are the keywords being discussed in communications?
Search terms that connect a generic word such as “smartphone” to being within 50 of another common word like “threat” is begging for false positive results. Just because two words are near each other in a paragraph does not make them relevant. Moreover, strategies that work for legal research do not translate into searching for responsive ESI. Knowing factors for relevancy, such as individuals, timeframes, and other terms that can give search greater context help identify responsive ESI.
Lawyers cannot simply wish searching for responsive ESI to be “simple.” Plans for producing ESI solely based on broad search terms can end with lawyers on a Highway to Hell with excessive irrelevant data to review. Identifying responsive ESI requires lawyers to analyze what they know to be relevant and develop a search strategy based off that analysis.
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.