Knotty Issues of eDiscovery
Litigants frequently get into motion practice over search terms and not specific requests for production. Hastings v. Ford Motor Co., is one of those cases. The lawsuit involved the purchase of a 2013 Ford F-350 truck in Texas that allegedly had a defective engine. The underlying claims included warranty, fraud,[…]
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Discovery requires thoughtful planning on how to search for electronically stored information, conferring with the opposing party on search methodologies, and following stipulations on designating ESI as Attorney-Eyes Only (AEO). The Plaintiffs in Youngevity Int’l Corp. v. Smith produced 4.2 million search term hits, designated them all AEO, and failed to[…]
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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).[…]
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Agreements to produce ESI solely from search term hits suffers a very fatal flaw: the results are not guaranteed to be relevant to the case. The parties who provided payment mechanisms for drivers of rental cars to pay highway tolls agreed to produce ESI responsive to the following search terms: Smartphone[…]
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Proportionality analysis is making its way into judicial opinions with outright citing the Federal Rules of Civil Procedure. US District Court Judge Robert Bryan in Washington limited additional searches of email based on proportionality and overbroad search requests. Moore v. Lowe’s Home Ctrs., LLC (W.D.Wash. Feb. 19, 2016, No. 14-1459[…]
Read moreThe Plaintiffs and Defendants in a SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any[…]
Read moreResponding to a discovery request marries the practice of law to search technology. Rule 26 Conferences in Federal Court often have parties spending a significant amount of time exchanging “search terms” to determine the most effective discovery protocol for a case. I think focusing on “search terms” alone is the[…]
Read moreAttorneys have been fighting over search terms for years. Many times this fight is without expert advice, search efficiency reports, or any evidence to support arguments for or against proportionality. I also think fighting over “search terms” is actually the wrong fight. The focus should be on search concepts and[…]
Read moreRosemary Woods was not involved in this document production. In motion practice over the adequacy of a production, the Plaintiffs were able to show that the Producing Party did not produce 18 email messages that were produced by a third-party. As such, the Plaintiff sought production of search efficiency reports[…]
Read moreOne lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit. The[…]
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