Knotty Issues of eDiscovery
The Plaintiffs in the class action case involving claims false advertising and unfair competition over automatic renewal of magazine subscriptions found a new spin of this often litigated dispute over search terms: a motion to compel the Defendants to produce all responsive ESI, regardless of whether it was a hit[…]
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In a motion practice over an ESI Protocol, US Magistrate Judge Becky R. Thorson entered the world of fights over search terms. The parties agreed on the preservation and litigation holds; production format; and custodians for collection with responsive information to earlier discovery requests. Murphy v. Piper, 2018 U.S. Dist.[…]
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Discovery requires thoughtful planning on how to search for electronically stored information, conferring with the opposing party on search methodologies, and following stipulations on designating ESI as Attorney-Eyes Only (AEO). The Plaintiffs in Youngevity Int’l Corp. v. Smith produced 4.2 million search term hits, designated them all AEO, and failed to[…]
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Discovery productions are a mix of art and science. I am of the mindset that parties should bring a motion to compel when a production is inadequate, not over what search terms to use. This is one of those cases where the parties fought over how to search for ESI.[…]
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Agreements to produce ESI solely from search term hits suffers a very fatal flaw: the results are not guaranteed to be relevant to the case. The parties who provided payment mechanisms for drivers of rental cars to pay highway tolls agreed to produce ESI responsive to the following search terms: Smartphone[…]
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Proportionality analysis is making its way into judicial opinions with outright citing the Federal Rules of Civil Procedure. US District Court Judge Robert Bryan in Washington limited additional searches of email based on proportionality and overbroad search requests. Moore v. Lowe’s Home Ctrs., LLC (W.D.Wash. Feb. 19, 2016, No. 14-1459[…]
Read moreThe Plaintiffs and Defendants in a SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any[…]
Read moreThere is no question that automotive product liability litigation is complex. However, self-collection is never a good idea. The Ford Unintended Acceleration Litigation is a case study on why it is a good idea to use archiving solutions and have expert witnesses conduct data collection. The Plaintiffs argued that Ford[…]
Read moreResponding to a discovery request marries the practice of law to search technology. Rule 26 Conferences in Federal Court often have parties spending a significant amount of time exchanging “search terms” to determine the most effective discovery protocol for a case. I think focusing on “search terms” alone is the[…]
Read moreAttorneys have been fighting over search terms for years. Many times this fight is without expert advice, search efficiency reports, or any evidence to support arguments for or against proportionality. I also think fighting over “search terms” is actually the wrong fight. The focus should be on search concepts and[…]
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