Don’t Complain About Search Terms Without Evidence of Inadequacy

In a motion practice over an ESI Protocol, US Magistrate Judge Becky R. Thorson entered the world of fights over search terms. The parties agreed on the preservation and litigation holds; production format; and custodians for collection with responsive information to earlier discovery requests. Murphy v. Piper, 2018 U.S. Dist. LEXIS 93043, at *22-23 (D. Minn. June 4, 2018). Searching custodial files for responsive information was another matter.

The Defendants were upset the Plaintiffs unilaterally searched for responsive ESI with their own search terms, instead of negotiating search terms with the Defendants. The Court did not state the Plaintiffs did anything wrong by using search terms as one method to locate responsive information. Murphy, at *30. The Court lacked the information necessary to find whether the discovery responses were insufficient and did not convert the Defendant’s complaint into a motion to compel. Murphy, at *30-31.

The Court stated that the eDiscovery disputes could have been avoided with better communications and collaboration between the parties. The Court noted in wishful dicta that should not be ignored, the hope that the discovery orders would “permit the parties to engage in a meaningful meet and confer about the electronic discovery protocol that should be applied.” Murphy, at *31.

Bow Tie Thoughts

It is a dangerous game to attack search terms without evidence a production is inadequate. Another approach would be to challenge the terms being applied with a search term efficiency report to raise doubt on whether the search terms are over inclusive, under inclusive, or both (the blood pressure raising worst kind of inefficiency).

The main question for producing ESI is one of reasonableness and not perfection. Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 306 (S.D.N.Y. 2012), citing The Sedona Conference, The Sedona Conference Database Principles: Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, March 2011 Public Comment Version, at 32. Moreover, Judges have stated that producing parties are in the best position to determine how to search for responsive ESI. Hyles v. New York City 2016 U.S. Dist. LEXIS 100390, at *7-8, (S.D.N.Y. Aug. 1, 2016) citing Sedona Principle 6. Furthermore, when it comes to searching for responsive ESI, the issue is whether the producing party has “conducted a search reasonably calculated to uncover all relevant documents.”  Mullen v. United States Army Crim. Investigation Command, 2012 U.S. Dist. LEXIS 93977, 12-15 (E.D. Va. July 6, 2012), citing Rein v. United States PTO, 553 F.3d 353, 362-63 (4th Cir. Va. 2009).

It is extremely difficult for a requesting party to attack the validly of search terms without some evidence that the search terms are inadequate. While complaining there was no meet and confer is a legitimate concern over the scope of discovery, it does not by itself show a production is inadequate.

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.