Keyword Search – Page 14 – Electronic Discovery Law

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Eurand, Inc. v. Mylan Pharm., Inc., 266 F.R.D. 79 (D. Del. 2010)

Dec 01 2010

Key Insight: Evaluating the adequacy of plaintiff?s search for a specific category of information, the court noted that the test to determine the appropriateness of a search is whether the search ?could?have been expected to produce the information requested?, determined that the information sought was likely to be found in the emails of the inventors of a specific patent, and ordered plaintiff to search the emails of the relevant inventors within a date range prescribed by the court; opinion included brief discussion of keyword searching and noted, “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.”

Nature of Case: Patent litigation

Electronic Data Involved: Emails

Ross v. Abercrombie & Fitch Co, 2010 WL 1957802 (S.D. Ohio May 14, 2010)

Dec 01 2010

Key Insight: Where defendant resisted plaintiff?s motion to compel additional searching based upon having already conducted an initial, agreed-upon keyword search and upon unsubstantiated claims that additional searching would be unduly burdensome regardless of prior efforts, court rejected defendant?s arguments absent a sufficient showing of burden, granted plaintiff?s motion, and ordered the parties to meet and confer to reach agreement regarding the searches

Nature of Case: Securities class action

Electronic Data Involved: ESI

Perry v. Schwarzenegger, 2010 WL 1135781 (N.D. Cal. Mar. 22, 2010)

Dec 01 2010

Key Insight: Addressing several objections to the magistrate?s order compelling production of data from non-parties, court held that despite ?minimal? showing of relevance, magistrate did not err in ordering production of data where magistrate weighed the relevance of the data against the burden alleged and ordered appropriate steps to reduce the burden, including limiting the review of documents to those hit by a small set of search terms, waiving respondents? obligations to produce a privilege log, and allowing one respondent to search only its central server rather than 75 individual hard drives following that respondents? showing of undue burden; court rejected petitioner?s objections to the measures taken to reduce the non-parties? burdens

Nature of Case: Litigation surround California’s Proposition 8

Electronic Data Involved: ESI

Martinez-Hernandez v. Butterball LLC, 2010 2089251 (E.D.N.C. May 21, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?

Nature of Case: Class action

Electronic Data Involved: ESI

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

In re Stern, 321 S.W.3d 828 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: On petition for a writ of mandamus, the Supreme Court held that the trial court abused its discretion in ordering petitioner to produce communications between himself and nearly forty individuals where such discovery was not narrowly tailored to avoid the inclusion of ?tenuous information irrelevant to the establishment of jurisdiction? (the subject of petitioner?s special appearance) and held that the trial court abused its discretion in appointing a special master to conduct a forensic examination of petitioner?s hard drive where there was no showing that petitioner had defaulted in his discovery obligations, where there was no showing that a search of the hard drive would recover relevant information (particularly in light of petitioner?s use of web-based email), where the special master was appointed without following the procedures called for by the Texas Rules of Civil Procedure, where the special master?s broad authorization to search the hard drives (including the authority to choose search terms) amounted to an ?impermissible fishing expedition?, and where the trial court required no showing of the feasibility of retrieving the data by the party requesting the search

Nature of Case: Defamation

Electronic Data Involved: Emails, hard drive

Trusz v. USB Realty Investors LLC, 2010 WL 3583064 (D. Conn. Sept. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff accused defendant of a ?document dump? in the wake of its production of 4,004,183 pages of documents and where defendants argued that the high volume was a result of plaintiff?s overbroad discovery requests, the court reasoned that the issue could have been avoided had counsel conferred to refine search terms and ordered the parties to confer in good faith to reach agreement regarding reducing the volume of discovery and that absent agreement, a special master would be appointed

Nature of Case: Claims arising from alleged concealment of overvaluing real estate investments

Electronic Data Involved: ESI

Tag:Keyword Search