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, and negligent repairs.
The Plaintiff sought to compel the Defendant to identify custodians and search databases using keywords provided by Plaintiff. Unfortunately for the Plaintiffs, they addressed their requests for production only in passing. This left the Court with having to analyze the dispute generally. Hastings v. Ford Motor Co., No. 19-cv-2217-BAS-MDD, 2021 U.S. Dist. LEXIS 65026, at *5-6 (S.D. Cal. Apr. 2, 2021).
Magistrate Judge Mitch Dembin laid out the elements of Federal Rule of Civil Procedure Rule 34, which state 1) requesting parties request “information” (Rule 34(a)(1)); and 2) producing parties must produce the requested information or object. Rule 34(b)(2)(B). Hastings, at *6-7.
Judge Dembin drove home what is NOT in Rule 34:
Nothing in Rule 34 requires a requesting party to identify custodians or search terms or for a producing party to accede to demands that particular custodians’ files be searched or that particular search terms be used.
Hastings, at *6-7.
The Court explained that eDiscovery had moved well beyond search terms, even though they still have a place. Hastings, at *7. Furthermore, the Court cited to Principle No. 6 of the Sedona Principles, which states that the “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, Principle 6, 118 (2018).
Judge Dembin concluded the search term dispute with the following “guidance” to the parties on discovery:
The Court will not decide whether any proposed custodians are appropriate nor on the use of the requested search terms. Instead, Plaintiff must request information, regardless of how or where it is maintained by Defendants, which Defendants must address as required by Rule 34. That is discovery: A party requests information and the burden is on the producing party to locate and produce it or object legitimately to production. To the extent Plaintiff is seeking to compel Defendants to conduct discovery as directed by Plaintiff, the Court declines to issue such an order. Defendants, however, should consider that rejecting proposed custodians and search terms carries risk: If material information is not preserved or disclosed because of an unreasonable choice, there may be sanctionable consequences. See, e.g., Rule 37(e). The parties should cooperate regarding discovery and be as transparent as possible regarding discovery.
Hastings, at *8.
Bow Tie Thoughts
As a preliminary matter, Judge Dembin is a good friend who has presented at San Diego Comic Con, WonderCon, and San Diego Comic Fest on legal issues in Star Trek, Marvel, and Star Wars. Judge Dembin holds the record for presiding over the most “geek” mock trials. He is also extremely knowledgeable on eDiscovery and computer forensics.
The task of framing a lawsuit to define the scope of discovery, who might have relevant information, where information is stored, and the types of data in a case, are all excellent topics for a meet and confer before propounding discovery requests. The fundamental question is “what are you looking for?” Knowing that answer can shape what is requested from the opposing party.
Search terms are a good starting point for identifying relevant information, but they are not the end point. There can be responsive information on a specific topic that does not contain any search terms, but the context of the communication shows it is responsive. eDiscovery applications with predictive analytics can help find this sort of relevant information. Such information can also be identified from email threading, clustering, data visualization, and similar advanced analytics.
All eDiscovery search applications are academic without a request for production that seeks reasonably tailored information. This reality brings us back to the basics of Rule 34: know what you want to request from the opposing party. Don’t make it have a dozen subparts so the request is compound to the point of being unintelligible. Take the time to draft requests based on the information needed to prove your case.