In a Fair Labor Standards Case against Butterball, the Plaintiffs claimed the Defendants’ ESI production was incomplete. The Defendants in turn claimed that the “burden” of producing the discovery was burdensome, justifying cost shifting. Helmert, et al., v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010).
While that sounds like a standard e-Discovery dispute, something was not right in the kitchen.
Searching for the Right Recipe
Search terms were an “iron chef-esq” battle in the case.
The Defendants ran search terms over active and archived email databases of twenty-two custodians. Helmert, at *4.
The Plaintiffs sought to compel the Defendants to run an additional 70 search terms over forty-three custodians. Helmert, at *9.
The two sides debated and narrowed search terms across a significant portion of the opinion, with the number of custodians and search terms fluctuating.
One element of the search term dispute was searching “Donning and Duffing” cases against one of the Defendants and its subsidiaries. Helmert, at *11.
A Bad Taste in Your Mouth
The Defendants made an argument that tasted like a turkey brine of tuna and sulfur in soda water: It was “impossible” to search email messages for more than one word in a sentence. Helmert, at *13.
The Court did find the Defendants needed to produce additional discovery, but added a big caveat:
The Court does agree that, to the extent that it is impossible to conduct an electronic search of emails for one term within the same sentence as another term, requiring Butterball to do so would be unduly burdensome. The plaintiffs offer no evidence that Butterball can, in fact, perform such a search electronically. Nor do they offer any alternative method for conducting such a search.
Helmert, at *14-15.
The Plaintiffs did argue the Defendant could search for the first term and then run a second search as a “work around” to this technically “impossibility.”
A Burnt Turkey
The “impossibility” in this case was attempting to search active and archived email, not necessarily preserved ESI.
This raises the issue, just what sort of litigation hold had been enacted? Was the data at all collected or were the Defendants searching over live and archived data the entire time?
If the data had been collected and preserved with any of several different collection tools, the “impossibility” would have faded away, instead of lingering like a burnt turkey.
One example of how this search could have been performed would have been by performing a Proximity Search with EnCase e-Discovery, which allows for a keyword search within a user defined proximity of other keywords.
As explained by Alexis Robbins of Guidance Software, here is how the search would have been possible:
EnCase® eDiscovery supports the ability to search multiple keywords within a sentence via its proximity search function. Proximity search allows for keyword search within a specified number (user defined) of keywords of another keyword. For example, with EnCase eDiscovery a user could enter a whole word search expression “Stock Option” and identify all instances of the words Stock and Option within a proximity (2) of each other. Proximity support is not with EnCase® Portable, at this time, which does straight keyword searching.
- EnCase eDiscovery searching of “Stock” within two words of “Option”
Bow Tie Thoughts
Lawyers who are new to electronic discovery may assume things are “impossible.” Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive.
Consulting with a third-party expert, or even performing a Google search, may prove the “impossible” is actually a common practice in many situations.
This case likely would have saved time and money if the parties could have agreed on the key custodians, had a third-party preserve the data and then had an index which could be searched based on agreed upon keywords within the same sentence. This could likely would have cost less than the protracted litigation, meet and confer conferences and a motion to compel battle.
While I agree that most lawyers should get more input from qualified experts, I can not go as far your conclusions in this post without more on the potential value of the information being sought.
“Impossible” is a relative term based on the tools and technologies owned and used by the company in their normal course of business. If you have invested in a cutting edge tool like EnCase, many things are feasible. On the other hand, if the only tool at your disposal for searching emails is dependent on the LotusScript version of boolean searching, proximity searches are impossible (or at best, highly unreliable). Many companies have invested in tools like EnCase but it is not a universal requirement for every company to do so. Neither the plaintiffs nor the court can intrude on management’s business judgement about such investments.
Assuming for the moment that the company decided in good faith not to deploy EnCase (and there are many reasons for doing so, the difficulty of retaining expert staff high among them), there should not be an instant presumption that the company must now make such an investment for this one case. Not unless the probable benefit outweighs the costs.
Yes, you could still hire those services on an ad-hoc basis. But it’s not cheap and may or may not be justified in any given case.
Could the attorneys have taken the held data and run their own EnCase-enable search against it? Again, maybe, maybe not. It depends on how the data is structured in the original repositories. You cite 43 custodians but we don’t know if their data is comingled with others and if so how much, for example. Or they could be looking in repositories with high proportions of non-relevant documents which, if held in total, would disrupt the company’s legitimate retention schedule.
Again, whether or not that investment is justified depends on the potential value of the documents in question. Absent clear reasons to believe that the value justifies a specialized tool, discovery has always been based on the data and tools used by the company in their normal course of business.
Hi – I’m new to your blog … but you are so right! I know of lawyers who have done as the Defendants did in this case and the problem was exacerbated because the judge was not clued up enough on electronic discovery to make sensible directions!
Almost any hosted or on premise electronic discovery tool would have solved these problems almost straight away.