Court Denies Relief Where Party Ignored Court’s Suggestions for Reducing Volume of ESI Captured by Keyword Search: “Defendants Must Now Lie in the Bed that They Have Made”

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008)

In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes.  The court denied in part and granted in part Onex’s motion, and ordered Onex to produce all identified documents, except for two specific categories deemed unlikely to contain relevant information.

Previously, Onex had been ordered to produce email from two electronic backup tapes selected by Kipperman, using search terms provided by Kipperman.  However, Onex only searched the mailboxes of seven people whose depositions Kipperman sought.  Kipperman argued Onex should have searched all mailboxes on the tapes, and the court issued a second order directing Onex to search all mailboxes on the two tapes plus an additional tape selected by Kipperman.  The court did suggest, however, that Kipperman be more “artful” with its search terms, and that Kipperman use a list of individuals, to be provided by Onex, to determine the need to search each mailbox.  The court also granted Onex the opportunity to narrow the search terms.  Onex did not provide this list of individuals, and did not narrow the search terms, and essentially agreed to search and restore all of the mailboxes with the search terms provided by Kipperman.

After it conducted the search, Onex sought relief from having to review and produce all of the results from that search.  Specifically, Onex sought relief from producing documents it deemed to be irrelevant, documents identified by the term “Armtec,” and documents captured from mailboxes belonging to its subsidiary, ONCAP.  Onex argued that Kipperman’s search terms were overly broad and resulted in thousands of irrelevant hits.  Onex also argued that Armtec had not been addressed by Kipperman’s initial or amended complaint and that documents from ONCAP were irrelevant because ONCAP was not a party and Kipperman had not requested ONCAP documents.

The court denied the request for relief as to documents deemed irrelevant by Onex, noting its failure to take advantage of the court’s suggestions for reducing its burden:

Despite all of this, the court is not unsympathetic to the massive amount of discovery involved in this matter, the considerable burden of working with it, and the overproduction that often comes with e-mail production.  Therefore, the court gave Defendants numerous tools by which to reduce the burden of e-mail discovery, including an opportunity to limit Plaintiff’s search terms and an opportunity to provide a list by which the number of peoples and the number of boxes being searched could be reduced.  Defendants did not take advantage of these opportunities.  Defendants must now lie in the bed that they have made.  Thus, Defendants’ objections on the basis of relevancy and volume are DENIED.

The court granted Onex’s request for relief from production of documents related to Armtec and ONCAP, however, stating:

The court could deny Defendants’ requests with respect to Armtec and ONCAP for these reasons as well.  However, the court finds it highly unlikely that these search terms and mailboxes will garner relevant, useful information and finds the parties’ and the court’s burden in working with this information to outweigh its relative usefulness.  On these grounds, the court will GRANT Defendants’ request for relief with respect to these search terms and these mailboxes.