Key Insight: Judge reluctantly agreed with plaintiff that TAR should be applied before keyword searches used to cull data set.
Nature of Case: Products Liability
Electronic Data Involved: ESI
Keywords: TAR; keyword; data cull
Key Insight: Plaintiff requested Defendant run 72 “spelling variations” of 5 terms allowed by prior court order. Court denied and allowed 20, but did not apply sanctions yet.
Nature of Case: Libel/Slander
Electronic Data Involved: Various ESI
Keywords: search terms; sanctions; cooperation
Key Insight: How much access of a party’s electronic information system does rule 34(a) give a party?
Nature of Case: Trade secrets
Electronic Data Involved: Responsive documents
Keywords: ESI protocol, Forensic images, overly broad
Key Insight: Where, in email, the parties agreed to use certain search terms and one party produced all such hits except those deemed privileged while the other produced only relevant documents, court indicated that if it were to construe the emails as a binding contract, Defendant would be in breach, but found that it was not a contract and reasoned that there was no evidence that relevant documents were withheld nor that additional searches would produce more responsive documents, and thus denied Plaintiff?s motion to compel
Nature of Case: Defamation
Electronic Data Involved: ESI identified by agreed search terms
Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Court granted motion to compel inspection of Defendant?s personal computer that was utilized for business where Plaintiff established that relevant information was likely stored there, where the information was potentially ?critical? to Plaintiff?s case (regarding whether Defendant had utilized Plaintiff?s confidential information), where there was ?no other avenue? to obtain the requested discovery, where the costs did not appear substantial, where Plaintiff?s counsel made a good faith effort at alternative resolutions before brining the motion, and?notably?where Defendant had previously agreed to the inspection (but later objected); court also granted access to Defendant?s email accounts, including disclosure of his passwords; as to both repositories, court ordered the parties? to agree on a search protocol/search terms that included allowing Defendant to review the results of the search prior to production
Nature of Case: Defendant’s alleged use of Plaintiff’s confidential files to underbid Plaintiff on various projects
Electronic Data Involved: ESI, email
Key Insight: The parties in this case agreed to produce ESI ?in accordance with the Southern District?s Order Governing Discovery of Electronically Stored Information.? Defendant sought production of all documents that ??hit? on the parties? agreed-upon search terms without further relevance review,? arguing that the terms were narrowly tailored and that any resulting hits were ?presumptively relevant and responsive.? Plaintiffs argued that Defendant?s interpretation of the order was contrary to law and conflicted with the language of Fed. R. Civ. P. 26(b)(1), among other things. Citing a declaration from Plaintiff?s CEO that the search hits, which for some terms numbered in the thousands or tens of thousands, contained a substantial number of irrelevant documents, the court agreed that ?culling for relevance [was] warranted.?
Nature of Case: Patent Infringement
Electronic Data Involved: ESI (search hits)
Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.
Nature of Case: Products Liability
Electronic Data Involved: ESI
Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.
Nature of Case: Professional Negligence
Electronic Data Involved: e-mail
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