Back in the Before Times, many of us used to fly places to see others at eDiscovery conferences. It might be another year before we can have in person events again. However, there is no shortage of case law with motion practice over searching ESI.
In a dispute between the former President and CEO of Spirit Airlines and the airline, the Plaintiff alleged the Defendant did not search the email accounts for five board members identified in their initial disclosures. This normally could be a sign for an inadequate production. However, the issue was searching the personal email accounts of these individuals. Since they were not employees, the airline did not have any email accounts to search. Lawson v Spirit Aerosystems, 2020 U.S. Dist. LEXIS 14887, at *31 (D. Kan., Jan. 29, 2020).
The Plaintiff cited no authority for the Defendant to search personal email accounts of the board of directors. Lawson, *32. Moreover, the Defendant searched for emails of employees who communicated with the board members and produced those emails. Furthermore, the Defendant produced records from software that provided information to board members. In short, the Defendant searched for the communications they had and produced them. Lawson, *31-32.
The Plaintiff’s motion to compel called for the Defendant to conduct new ESI search with custodians, search terms, and date ranges. Lawson, *34. The Court noted these proposed searches were marginally relevant, with the reasoning for the search being the email was used to “discuss relevant issues.” Id. The Court found these proposed searches to be not proportional to the case. Lawson, *34-35. Moreover, these proposed searches could have been included in the original ESI Protocol, which they were not.
The Defendant had produced nearly 24,000 documents, totaling 175,000 pages in 24 productions. The Plaintiff had not demonstrated any true deficiencies with the productions. As such, the Court denied the motion to compel as not being proportional to the needs of the case. Lawson, *35-36.
Bow Tie Thoughts
Search terms are a good starting point for searching ESI, but they are not an end point. Identifying all possible search terms at the start of a case is difficult. Search term efficiency reports are one way to fine tune search terms. Moreover, parties might determining certain stemming searches, such as the different forms of “earning,” while avoiding false positive hits for “earnest.” Search term reports might also be helpful in identifying proximity searches that could be done to find one term within a set amount of characters from another (such as “interest” within 20 of “earnings).
Can we identify every possible search strategy? No, of course not. That said, we need a starting place to find relevant data. Determining what is the ultimate goal for what you want to find is the first step in creating a discovery plan that can use the various Technology Assisted Review tools to identify responsive ESI.