eDiscovery disputes happen in Federal and State cases across the country. In an unpublished New York Court opinion, Judge Andrew Borrok denied a motion to compel production of search term hits as premature. Afc Agent LLC v. JG Holdco LLC, 2026 NY Slip Op 31064(U), 2 (Sup. Ct.).
The Plaintiff claimed the Defendant refused to engage in proportionate discovery for failure to produce hits to search terms. Afc Agent LLC, at *2-3.
The Defendants argued (and the Court agreed) that the Plaintiff’s proposed search terms generated too many hits. Afc Agent LLC, at *3.
The Court held that the Plaintiff did not explain why the Defendant’s proposed search terms were inadequate. Moreover, the parties had not met and conferred over the search term despite. Id.
The Court ordered the parties to meet and confer over the disputed search terms to resolve their discovery dispute. Id.
Bow Tie Thoughts
We have an adversarial system for attorneys to zealously represent their clients. The problem for many lawyers is knowing when to turn off the impulse to fight on every issue. Negotiating over search terms is one of those areas where attorneys can ramp up to brawl unnecessarily.
Identifying relevant records proportional to the needs of the case is in everyone’s best interest. Lawyers need to know the strength of their client’s position. Understanding an ocean of emails, text messages, spreadsheets, and whatever other modern data is in their possession, custody, or control, is mission critical to providing effective legal advice. Knowing the facts empowers lawyers to make arguments to court that are candid and factually correct. That knowledge can give lawyers the insight need to advise on going to trial or settling a lawsuit.
Determining what is proportional is a difficult task. How much data is there, how can it be collected, what tools are necessary for analysis, how much will it cost to review and produce the data, are all questions that need to be answered in order to know if something is unduly burdensome.