Showing 2 posts from February 2011.

[UPDATE] Using search as a shield?


Sorry for the quasi-necropost, but I just stumbled upon relevant case law.  In reading Cecil Lynn's excellent recent article on, Drama & Destruction, that provides a great rundown of 2010 case law, I came across this case summary:

In Ross v. Abercrombie & Fitch, defense counsel argued unpersuasively that the defense had no obligation to search for or locate known documents that did not turn up using the parties' agreed-upon search terms. 2010 U.S. Dist. Lexis 47620, at *11-14 (S.D. Ohio May 14, 2010).

I haven't read the case, but this seems to support the proposition that a producing party's obligation to produce relevant materials is not limited by the application of search terms.  In other words, search terms are not a shield to producing known, relevant documents. Thank you very much.

ORIGINAL POST (2009-09-18 12:22:33):

This isn't exactly timely, but it's been on my mind for months, and I wanted to share and get your feedback.

I had the pleasure of attending The Sedona Conference® Institute this past March in Philadelphia.  During the last day lunch, a particularly interesting conversation started up at my table.  I was sitting with people I had never met before and probably wouldn't be able to pick out of a crowd now, but we managed to have a brief and interesting discussion about keyword searching and the obligation to produce.  I don't remember how it started, but the terms of the debate were this:  Is there an obligation to produce responsive data that was not hit by negotiated keyword terms?  That is, you have positive knowledge that responsive documents have been excluded by keyword searching.  Are you obligated to produce them?

I thought, and still do, that there is absolutely an obligation to turn the documents over.  Keyword searching is a method for finding responsive documents that are mixed in with a morass of non-responsive documents.  But, if you have a collected group of documents that are responsive, there's no need to dump them in the unsorted pile in the first place.  They should be set aside for production without having to be keyword searched at all.

I casually shared my opinion with the table and saw several nodding heads, but I was surprised to find that two gentlemen did not agreed at all.  Their view was that, if the keywords were negotiated, then the results are the results and there's no obligation to turn over anything not hit by them.  One gentleman (a litigator, if I recall correctly) flatly said he would not turn over the responsive documents.  The other gentleman (a vendor, I think) rather snidely remarked something to the effect that 'You wouldn't tell the other side what to ask during depositions, would you?'  I agreed with that but thought it was a specious analogy.  Not wanting to ruin a  pleasant lunch with a heated debate, I let the discussion go, but it's been eating at me ever since.

Compare the view of these two gentlemen to the view of those of us who use sampling techniques to test the accuracy of keyword searches.  When testing for false negatives (exclusion of responsive documents), many people are of the opinion that even one false negative requires that the whole pile of excluded documents be manually reviewed.  On the other hand, for the gentlemen at my table, it would make no sense to ever test keyword search results, because they wouldn't produce any false negatives they found.  To me, not producing documents you know are responsive just because they weren't hit by negotiated keyword searches is like using keyword searching as a shield.  That not only violates the principles of cooperation but amounts to bad faith.

So which is right?  Am I being naive and Pollyanna-ish, or do these two guys not get it?  Or maybe it's a little of both?

[UPDATE] eDiscovery is Optional in Delaware Court of Chancery


Apparently I am the only one who seems to be concerned with the Court of Chancery's unqualified allowance for parties to agree to forgo discovery of ESI.  Here are the other blog posts I found that have reported on the new guidelines, not a single one raises any concern:

Delaware Court of Chancery Provides Good Advice on Preservation (Losey)

Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information (Brady)

Delaware Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information


Last week, the Delaware Court of Chancery—one of the nation's premier business Courts—unexpectedly issued a one and a half page "Guidelines for Preservation of Electronically Stored Information."  Surprisingly, the Guidelines seem to allow parties to opt-out of document discovery entirely (see the last item below).  In summary, the Guidelines are as follows:

  • There is a common law duty to preserve potentially relevant electronically stored information (ESI) within a party's possession, custody, or control once litigation is commenced or when litigation is "reasonably anticipated."
  • Parties must take reasonable steps in good faith to meet their duty to preserve ESI.
  • Parties and their counsel should confer early in the litigation regarding the preservation of ESI.
  • Parties and their counsel must develop, oversee, and document a preservation process in collaboration with the appropriate client information technology personnel.
  • Parties and their counsel should discuss the need to identify how custodians store their information, including document retention policies and procedures as well as the processes used to create, edit, send, receive, store, and destroy information for the custodians.
  • Counsel should take reasonable steps to verify information they receive about how ESI is created, modified, stored, or destroyed.
  • The preservation process should include a written litigation hold notice to individual custodians instructing them to take reasonable steps, act in good faith, and with a sense of urgency in preserving potentially relevant information.
  • Parties and their counsel may face "serious consequences" for failing to take reasonable steps to preserve ESI.
  • The reasonableness of a party's preservation process is judged on a case-by-case basis.
  • Counsel for all parties should confer about the scope and timing of discovery of ESI and may agree to limit or forgo the discovery of ESI.

I am very interested to hear comments on this development.