Search Terms – Electronic Discovery Law

Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

May 18 2022

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

O’Donnell/Salvatori Inc. v. Microsoft Corp. (W.D. Wash. 2021)

Oct 01 2021

Key Insight: Plaintiff moved the court to compel defendant to produce all non-privileged documents hitting on the agreed ESI search terms, regardless of whether they were relevant to a claim or defense in the case. Defendant had conducted a relevance review and withheld emails, such as employees joining or leaving the team, technical issues, and buying a new boat. The court denied plaintiff’s motion, finding that although there is little case law on the issue, “the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.” Thus, the court ultimately held that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Nature of Case: Copyright Infringement

Electronic Data Involved: Email

Case Summary

Federal Trade Commission v. American Screening, LLC (E.D. Mo. 2021)

Jul 07 2021

Key Insight: Plaintiff filed a Motion to Compel Defendants to produce internal emails in litigation over false advertising and the FTC Act; Defendants had previously objected to Plaintiff’s discovery requests without disclosing if responsive materials were withheld on the basis of their objections. Defendants responded that use of 58 search terms provided by Plaintiff yielded over 7,000,000 results, and that Plaintiff’s request(s) were overbroad, irrelevant, vague, ambiguous and burdensome. The Court rejects these assertions, granting Plaintiff’s Motion and holding that Defendants must search for and produce the information sought by Plaintiff.

Nature of Case: Antitrust, False Advertising, Consumer Protection

Electronic Data Involved: Email

Case Summary

Maurer v. Sysco Albany, LLC (N.D.N.Y. 2021)

May 27 2021

Key Insight: Plaintiff’s Motion to Compel Defendants to produce electronically stored information responsive to specific keyword searches as well as predictive coding. Defendants opposed the Motion on the basis that the information sought was overbroad, and not proportional or relevant to the litigation. Defendants proposed their own electronically stored information “search protocol”.

The Court partially granted Plaintiff’s Motion, allowing specific keyword searches and search methods requested by Plaintiff. Notably, the Court granted Plaintiff’s request to utilize predictive coding in the search for electronically stored information.

Nature of Case: Wrongful Termination, Disability Discrimination

Electronic Data Involved: Electronic Documents, Emails,

Case Summary

Healthedge Software, Inc. v. Sharp Health Plan (D. Mass. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce documents, including source code, and Plaintiff filed a Motion to Compel Defendant to disclose how it collected and searched its electronically stored information (ESI). The Court granted Plaintiff’s Motion while partially granting Defendant’s Motion.

A significant issue in both Motions was the respective parties’ collection of ESI. The Court noted that the parties failed “to engage in cooperative planning regarding ESI”, and directed the parties to confer regarding custodians and search terms of ESI collection and review. In partially granting Defendant’s Motion, the Court directed Plaintiff to further articulate its objections, but stated that some of Defendant’s discovery requests were premature even if Plaintiff was obligated to respond to them by the close of discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Electronic Documents, Source Code

Case Summary

Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)

Feb 22 2021

Key Insight: Court granted, in large part, plaintiff’s motion to compel ESI, requiring defendant to disclose data sources that may contain relevant ESI and refused to impose an “arbitrary limit of five or seven custodians” requested by defendants given the number of people identified as having potentially relevant information in their initial disclosures. The court urged the parties to agree upon search terms to less the burden of ESI searches and revisit an agreed time period in light of the court’s memorandum and order, rather than take “absolute line-in-the-sand positions” (citing Standing Order Relating to the Discovery of Electronically Stored Information at Principle 1.02 (Cooperation)). The court denied plaintiff’s request to produce the entire contents of her work email, finding the blanket request overbroad on its face.

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Case Summary

Murray v. City of Warren (E.D. Mich. 2020)

Aug 17 2020

Key Insight: The court agreed that plaintiff’s request for “all emails” from three custodians was overly broad and narrowed it to relevant search terms relating to plaintiff’s allegations of harassment. The court also relied on its prior ruling, directing the parties to confer regarding the search terms and if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, plaintiff can renew his motion and provide the court with an expert report substantiating his position.

Nature of Case: Employment discrimination

Electronic Data Involved: Email, Personnel files

Case Summary

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