Responding to discovery requests requires analyzing what is actually being asked for in the request. The first step of analysis entails developing search strategies for date ranges, key words, and other search criterion to identify responsive discovery.
Requesting parties have to prove a production is unreasonable or inadequate in order to challenge the sufficiency of a production. In a case where the producing party claimed they had to cull tens of thousands of documents, they produced fewer than 1,000 records where a keyword appeared only 50 times. Terry v. Register Tapes Unlimited, 2018 U.S. Dist. LEXIS 50846, at *6-7 (E.D. Cal. Mar. 26, 2018).
The Court found the production was inadequate based on the size of the production and that the producing party had not provided a signed verification that the production was full and complete. As such, the producing party was ordered for their next production to included a signed verification that the production was complete. Terry, at *7.
Bow Tie Thoughts
Search term hits alone are not indicative that ESI is relevant or responsive to a case. Moreover, search terms can fall into the frustratingly bizarre paradox of being both over and under inclusive. Using predictive coding, clustering, or other advanced analytics, can help identify responsive ESI beyond simply using keywords. Despite the shortcomings, keywords are the first step in identifying possibly responsive information, not the last.
Productions also have to pass the “sniff test.” There are no real stated factors for this test, besides a judge’s sense of whether a production is complete. In a situation where a party claimed they reviewed “tens of thousands” of documents, yet produced less than 1,000, with only 50 keyword hits, it is not hard to see how that can fail the sniff test.
The other big lesson is Rule 26(g) certifications matter. Not submitting one could be an invitation to challenge whether a production is full and complete. It is important to remember that productions are judged by a reasonable standard, so no one should expect perfection. However, if additional discovery is identified, a production should be supplemented pursuant to Rule 26(e).
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.