Meet and Confer to Solve Discovery Disputes

Discovery can be a challenge. It can get really ugly if the parties have not agreed on the scope of a case. The case of Elhannon LLC v. F.A. Bartlett Tree Expert Co., involves multiple discovery disputes in a case involving allegations of consumer fraud and breach of contract.

The Court described “significant animosity” between the parties over the discovery disputes. The Plaintiffs’ central argument was that the Defendants’ representation they had made complete discovery responses was false, because of contradictory deposition testimony. Ultimately, the Court granted the Plaintiff’s motion to compel in part and ordered the parties to meet and confer on the other disputed issues. Elhannon LLC v. F.A. Bartlett Tree Expert Co., 2017 U.S. Dis. LEXIS 58693.

The Plaintiffs argued the Defendants’ email production was inadequate, because the email searches were “haphazard, overly narrow, devoid of proper guidance by counsel, and unreliable to say the least.” Elhannon, at *7. Moreover, the Plaintiffs claimed the Defendants misrepresented to the Court they had produced all responsive email messages. Id.

The deposition testimony revealed two custodians, who produced a limited number of emails, testified they had not been provided search terms by their attorneys for identifying responsive email. Elhannon, at *7. Another deponent gave contradictory statements on whether she even did email searches for responsive messages. Elhannon, at *8. Another deponent admitted he had not used the Plaintiffs’ client identification number for searching for work orders related to the claims in the lawsuit. Id.

The Defendants claimed they had individual custodians running their own email searches because of a problem with their email archiving system. Elhannon, at *8-9.

Identifying responsive emails with keywords is not an easy task. The Court ordered the parties to meet and confer on the scope of the email search terms, because the parties had failed to so earlier in the case. Elhannon, at *28-29. Judge William Sessions III explained that there was no case law or code section supporting the Plaintiff’s position that the Defendants should have used different search terms to find relevant email messages. Elhannon, at *27. Regardless, the Court noted that cooperation between attorneys over search terms is often required, because of the complexity of identifying relevant ESI. As such, the Court allowed the parties to submit a list of search terms for approval after their meet and confer. Elhannon, at *29.

Bow Tie Thoughts

There is a lot to unpack in this case.

The Defendants having their own custodians conduct email searches is one of the most high-risk actions that a party can do. Self-collection can result in data being missed, inconsistent searches, and the horror of turning employees into witnesses explaining how they searched for all responsive information.

If a party must have custodians perform self-collection, it should at least be a self-executing collection. Using an application that can connect to the email account and apply search terms for specific email addresses, keywords, date ranges, has more elements for a defensible collection than custodians making personal judgment calls on what to search for and how.

This does not mean that custodians should not be involved in the search for responsive ESI. Attorneys and their collection experts should interview custodians on terms of art they use, persons they emailed about the subject matter of the lawsuit, time periods, and other relevant factors for finding responsive data.

The preferred method for collection is for someone trained in searching for ESI to conduct the searches to find the responsive data. This way the process can be documented for an affidavit if necessary, so there is no question as to how a party identified responsive communications.

The big lesson in this case is to meet and confer with the other side. A phone call or in-person meeting to discuss what is responsive in a case, date ranges, and individuals who are custodians is cheaper than protracted motion practice.

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 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.