Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).
The Defendant in Banas had produced 225,000 documents in a rolling production through “triangulation.”
This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.
The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.
The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id.
The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.
The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.
As such, supplemental discovery was reasonable.
The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.
Bow Tie Thoughts
Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.
Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.
I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.
Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.