November 10, 2008 – Electronic Discovery Law

Miscommunication about Search Terms Leads to Defendants’ Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff

Nov 10 2008

Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production. Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms. After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits. To reduce the volume, plaintiffs crafted a revised list of 123 terms. Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced. Abercrombie produced those documents. The parties also agreed that further refinements of the search would be necessary to cut down the remaining results. Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms.

Court Holds No Expectation of Privacy on Work Computer, Even for “Personal” Information

Nov 10 2008

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008)

In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search. Defendant argued that he, not his employer, owned the computers and that he therefore had a reasonable expectation of privacy as to the personal information stored on them. Finding that the employer, in fact, owned the computers and therefore had every right to consent to the search, the court denied defendant’s motion to suppress.

Archive - November 10, 2008