If there is a maximum with electronically stored information, parties can fight over basic searches and production formats. These problems often could be reduced, if not eliminated, by retaining a computer forensic expert for collecting responsive data. This is one of those cases where the producing party also wanted to print ESI as paper or PDF, which was not what the plaintiffs specified in their requests for productions. Zhulinska v Niyazov Law Group, P.C., 2021 U.S. Dist. LEXIS 219213 (Nov. 12, 2021).
Search Term Dispute
The instant case involved claims including sexual harassment and wage and hour allegations. In the first search term dispute, the Plaintiffs sought to compel the Defendants to search for emails on 18 specific dates, for the Plaintiffs’ names, or the terms “legal assistant,” “assistant,” “paralegal,” or “secretary.” Zhulinska, at *6. The Court easily agreed that the terms were relevant to the claims in the lawsuit. Zhulinska, at *7-8.
The Court stated the Defendants had failed to show undue burden in demonstrating the ESI was not reasonably accessible. Zhulinska, at *8. Moreover, the Court noted that the Defendants appeared to have not actually performed any searches to determine how many emails would be hits to the proposed search terms. Zhulinska, at *9. The Court expanded on this issue in footnote 2, where the Defendants anticipated burden was because they had not retained an ESI service provider and were conducting the search themselves. Id, fn 2. Furthermore, the Court stated that the Defendants’ burden arguments were “merely speculative.”
The Court also held that conducting searches with different spellings of an individual’s name was standard operating procedure. Zhulinska, at *10. The Court also opined on the value of predictive coding as an “efficient and acceptable means of culling relevant responsive documents to be produced from ESI identified through keyword searches.” Zhulinska, at *9.
Form of Production
The fact there are still production disputes since the 2006 Amendments to the Federal Rules of Civil Procedure is baffling. As one can expect, the Plaintiff sought email to be produced with metadata. The Defendants counter with hard copy or PDF (and by the offer of hard copy, I would guess printed emails scanned as PDFs or printed to PDF). Zhulinska, at *16.
The Court highlighted that ESI that is kept in an electronically searchable form should not be produced in a way that degrades or removes its searchable features. Zhulinska, at *17. Furthermore, the Defendants appeared to have its emails in a searchable format. The Court held that the Defendants had to produce the email in a text-searchable format, because the Plaintiffs had not specified the need for metadata. Zhulinska, at *19. However, if the Defendants produced the email as it was kept in the form it was kept, the Court expected the production to include associated metadata as well. Zhulinska, at *19-20.
Bow Tie Thoughts
We enjoy many options for the collection, review, and production, of electronically stored information at reasonable prices. One cannot create “undue burden” by refusing to use any of the ESI service providers on the market.
Magistrate Judge Roanne Mann’s comment about using predictive coding after after keyword searches is a great way to narrow hits to relevant ESI. Many products use continuous active learning in their predictive coding tools, so the application learns from issue coding for what is relevant or irrelevant. While there is some thought that needs to go into creating a predictive coding model, merely coding ESI as “Hot,” “Warm,” or “Cold,” can give a baseline for responsiveness that can help identify relevant data. That alone can help expedite review to find what is relevant from irrelevant.