Don’t Just Say, “No Emails Found”

The Plaintiff in a prisoner rights case sought emails related to an incident of self-harm on a specific date. The Defendants answered they did not have any responsive emails and could not respond. Carter v. Cummings, No. 16-cv-55-bbc, 2016 U.S. Dist. LEXIS 137118, at *7-8 (W.D. Wis. Oct. 3, 2016).

District Judge Barbara Crabb held that the Defendants could not produce what they did not have in their possession. Carter, at *7. Judge Crabb went on to order something that should be standard: identify the steps taken to determine whether there are any responsive documents. Carter, at *7-8. Merely stating “no emails found” was not enough.

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Demonstrating the steps taken to identify responsive information could require either a short explanation in a response or affidavit, depending on the complexity of the data. The producing party at least would want to identify the source of data, how it was collected, and what search was done.

In a case with email, this could include identifying the email system and the specific custodians who were collected. The scope of this request is limited to one specific day. This would make review all emails on that day possible, as there might only be a few. However, using the plaintiff’s name as a search term, plus any other descriptive terms of the incident, could illustrate what steps were taken to identify responsive information. A statement could be as simple as the following:

“After a diligent search of emails from Persons A, B, and C, collected from the Defendant’s server, sent and received on Dates X, Y, Z, with the search terms of [Plaintiff’s name], and [list of other search terms from the meet and confer], no responsive records were identified.” 

Complex cases might require more information. Moreover, many review applications have reporting options if full search history is required by a court.

Some might argue this borders on disclosing work product. That would depends on state rules. However, if the terms are objective facts from the case, and not attorney mental impressions about the information, this should preserve any privileges. Moreover, some argue that keywords are not work product, but that is still a debate between many lawyers for future court opinions.

There is a high risk that a party describing what search was done to identify responsive information could result in a virtual street fight with opposing counsel. Ideally the meet and confer process should be where parties discuss search issues for responsive ESI. Like with any objection, the producing party should be able to defend their position, and the requesting party should have enough information to either accept that data does not exist, or offer alternatives to finding the relevant electronically stored information.

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 in 2013, 2014, and 2015, 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.