I have never been a fan of Courts limiting how many search terms parties can use to find responsive ESI with no regard for how searches in review applications work. That is right up there with blaming high litigation costs because lawyers read. Limiting search terms also could limit the effectiveness of advanced analytics to help identify responsive information. That being said, requests for production are supposed to be narrowly tailored and not look like a 5-year-old kid’s Christmas list. A case from Michigan rightly put the breaks on overly broad search terms in requests for production.
The lawsuit was a patent dispute over automobile roof-opening mechanisms. The Court issued the following ESI Order:
“Each requesting party shall limit its email production requests to eight (8) key custodians and a total of ten search terms per custodian per side.
The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its product name, are inappropriate unless combined with narrowing search criteria that significantly reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g. ‘computer’ and ‘system’) narrows the search and shall count asa single term. A disjunctive combination of multiple words or phrases (e.g.’computer’ or ‘system’) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word.Use of narrowing search criteria (e.g. ‘and,’ ‘but not,’ ‘w/x’) is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery.”
Webastro Thermo & Comfort N. Am., Inc. v. BesTop, Inc., 326 F.R.D. 465, 467 (E.D. Mich. 2018).
The Defendant’s request for production for email included search terms such as Jeep, Top, Fabric and Fold (plus others). The hits for three of the custodians were 30GB, 13GB, and 10GB, which translated to a total of 207,169 for those three individuals. Webastro, at *467.
The Court found the requests were overly broad and violated the ESI Order. The parties were ordered to meet and confer on how to focus the searches to find relevant ESI. After that meeting the Defendant had to submit amended discovery requests with narrowed search terms. The parties then were to determine new production deadlines after reviewing the amended requests for production. Webastro, at *469
Bow Tie Thoughts
The practice of law requires legal analysis of facts to the law. That is what we do as lawyers. This requires drafting discovery requests that seek information that is relevant to a lawsuit.
Litigation cannot devolve into parties issuing requests for production of search terms and responding parties producing hits. Just because something is a hit to a search term does not mean it is relevant. While the ESI Order focused on structuring search terms with connectors, the Court was encouraging the parties to request what they actually wanted in the lawsuit. When requesting parties want all search hits in an email mailbox containing a common search term, they are asking for trouble. Requesting communications between specific people, over a set period of time, regarding specific subject matter, is one way to draft narrowly tailored requests meets the goal of asking for relevant information. The resulting request could look like the above ESI Order, without being ordered to draft requests with limits on searches.
Search terms are a natural starting point for starting document review. However, using the request to develop search terms can have the twin effects of getting the requesting party to propound requests for what they really want and allowing the requesting party to develop searches to find what is relevant. In such situations, proximity searches, analytics, and predictive coding, can all be utilized to find what is responsive to requests. However, this requires focusing on the merits to understand what is relevant and leveraging technology to meet that objective.
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.