Negotiating Effective Search Terms Will Save Expense Later
By Angela M. Scafuri – April 30, 2012
Lack of attention to the requirements of electronic discovery is a black hole in which many litigators may find themselves, leading to extra discovery expense and, sometimes, sanctions by the court. How many cases have we seen regarding a party’s failure to issue a litigation hold, a seemingly simple task? Or cases detailing the failure of parties to engage in a substantive Rule 26(f) conference, failing to discuss the form and manner of production of electronically stored information (ESI) until the last minute, when discovery requests are actually served?
Similarly, parties routinely fail to give proper attention to search terms for ESI. In a rush to comply with a court-ordered deadline, parties often fail to craft detailed search parameters. When it comes to negotiating search terms, why do parties seem to ignore the critical importance of this not so simple task? Taking the time to craft effective search terms now can save you from a huge headache later. Indeed, the opinion in a recent decision from the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix Inc., No. 03-3677 (DRD), 2011 U.S. Dist. LEXIS 141614, at *1 (D.N.J. Dec. 9, 2011), begins with the following thought: “This case highlights the dangers of carelessness and inattention in e-discovery.” Therein lies a cautionary tale on the importance of negotiating effective search parameters.
The Biomatrix Decision
In Biomatrix, I-Med filed suit alleging that Biomatrix had failed to provide its products to I-Med in breach of contracts granting I-Med exclusive distribution rights. The parties entered into a stipulation to resolve discovery disputes. As part of the stipulation, I-Med permitted Biomatrix, through its expert, to conduct a forensic search of I-Med’s computer network, including servers and related storage devices. The search parameters negotiated between the parties included more than 50 specified keywords, including some in French. The search parameters were extremely broad. They were not narrowed to a particular time period or to specific custodians. Nor were the search parameters limited to active files; they included a search of unallocated space, which held deleted files, partially deleted files, and other temporary files. The expert was charged not only with the task of culling these data but also with determining how and when documents and files containing keywords were deleted, modified, or both.
Biomatrix’s expert ultimately provided I-Med with a ZIP file of the records retrieved from its systems. Pursuant to the stipulation, I-Med had agreed to review the material, determine which documents were responsive and which were confidential, and create a privilege log as to any privileged documents. The non-privileged documents, as well as the log, were to be turned over to Biomatrix within 60 days of I-Med’s receipt of the documents from the expert. After receipt of the ZIP file, however, I-Med complained that just to open each file would take more than 10,000 hours of time: The expert’s work had returned 187,796 active files and more than 251 gigabytes of data in the deleted files—consisting of 64,382,929 hits (documents) in unallocated space alone, representing some 95 million pages of data. I-Med asked for, and was granted, more time for its privilege review.
Prior to the deadline for production, I-Med sought to further tailor the ESI search parameters, asking for an agreement that it need provide only the deleted files of a single custodian. Biomatrix objected, stating that the parties had negotiated the process and parameters for the ESI search, and that the resulting search had confirmed that substantial deletions were made system-wide. After a telephone conference, the magistrate judge entered an order permitting I-Med to withhold data found in the unallocated space, thereby avoiding the expense of a costly privilege review, but also allowing Biomatrix to seek reimbursement for the costs incurred by its expert in extracting and searching for the data. The order was based, in part, on findings that the burden of the privilege review by I-Med would outweigh any potential benefit and that the likelihood of finding relevant, admissible evidence was “minimal.”
Biomatrix appealed the magistrate judge’s decision. On appeal, the district court upheld the order, determining that the benefit of the review of material from the unallocated space was unlikely to justify the burden and expense that would be required to complete it. In addition to the expenditure of resources that would be required of I-Med to accomplish the review, the court considered the expenditure of resources by Biomatrix in obtaining the data, but the court determined that it “pale[d] in comparison to the millions of dollars” that would be spent by I-Med to review the material adequately. Id. at *16. As the court noted, “[a] privilege review of 65 million documents is no small undertaking,” adding that, “[e]ven if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.” Id. at *15.
Critically, the court noted that I-Med “should have exercised more diligence before stipulating to such broad search terms.” Id. at *17. The court went on to state:
In evaluating whether a set of search terms are reasonable, a party should consider a variety of factors, including: (1) the scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians; (2) any date restrictions imposed on the search; (3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents; (4) whether operators such as “and”, “not”, or “near” are used to restrict the universe of possible results; (5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.
The court also addressed Biomatrix’s complaint that the magistrate judge had improperly modified the agreement between the parties relating to the ESI search parameters. In this regard, the court counseled that “[w]hile courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.” Id. at *14.
Perhaps the most telling line of the district court’s opinion is the following: “While [I-Med] should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing [I-Med] to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.” Id. at *17–18. In Biomatrix, I-Med, the plaintiff, was thus fortunate that the court did not force it to review an estimated 95 million pages of records found in unallocated space, notwithstanding I-Med’s initial agreement to broad search terms and unlimited parameters. Indeed, the court realized that the search terms originally agreed upon were too broad, making the costs associated with performing a full privilege review burdensome. Further, the likelihood of any of the data being responsive was especially low because searches of data from the unallocated space of I-Med’s computer systems would cause the projected costs to be disproportionate to any potential gain.
Tailoring Reasonable ESI Search Parameters
Biomatrix reminds us why it is critical to negotiate effective search parameters. Continued failure to adhere to basic concepts, like attention to detail, undeniably leads to escalated litigation costs when addressing issues related to ESI. So, what can you do to avoid the type of situation in which the plaintiff found itself in Biomatrix?
First, pay attention. Do not enter into ESI stipulations haphazardly or without some preliminary evaluation and preparation. Do not think you can go back later and try to tailor the search request more narrowly. There is something to be said for getting it right the first time. Take time at the outset of the case to interview key custodians and discuss potential search terms. Your client’s information technology (IT) department will be an invaluable resource during the course of the litigation. Make the effort to learn about your client’s IT department early on, and determine who may be able to provide assistance with regard to the anticipated ESI search and collection process. The IT department may be able to run a preliminary search of certain keywords to get an initial idea of the amount of data the search may retrieve.
Second, make sure your stipulation includes the basics. In Biomatrix, we learned that the ESI stipulation between the parties did not contain a limit on the most basic of search parameters like time frame and custodians. These two factors alone can make all the difference between a 95-million-page result and a 950-page result. Search parameters should not just detail keywords. They should include a date range, identify key custodians, identify file types, and identify the systems to be searched. When negotiating which systems will be searched, it is best to get input from your client regarding active files and unallocated space.
Third, carefully consider whether there is a need to search unallocated space—the space on a custodian’s drive that is not used for storing active files. It may contain only segments of files that were previously deleted from the drive. More times than not, the data collected from unallocated space are not useful, and the cost to search it far exceeds the potential benefit. If intentional deletion of ESI is not an issue in the case, there is no compelling reason to review data in the unallocated space of a custodian’s drive. Of course, there may be occasions when the information in unallocated space may be critical to your case. The key is to make your inquiries with your client before negotiating the ESI search parameters.
Finally, consider testing the search terms. If you are struggling with keyword selection, it may benefit your client to expend the resources to test those search terms. Enlist your client’s IT department to assist you with this process. The key here is to strike a balance between responsive documents and extraneous and irrelevant files. In addition, if you do receive a particularly large set of ESI documents from your keyword search, it may be beneficial to perform a sampling. By sampling, you can create a sample set from your search result to determine whether you are retrieving false hits or relevant data.
The Concepts of Cooperation and Proportionality
Remember the concepts of cooperation and proportionality. Both the courts and counsel have an equal responsibility to remain proactive in their efforts to curb electronic discovery abuses and the exploding costs of litigation associated with abusive discovery practices, like overbroad requests for ESI and document dumps.
The guiding principles of proportionality are referenced in both Rule 26 of the Federal Rules of Civil Procedure and The Sedona Conference. The Rule 26 proportionality test allows the court to “limit discovery if it determines that the burden of the discovery outweighs its benefit.” In re IKB Deutsche Undustriebank AG, 2010 WL 1526070, at *5 (N.D. Ill. 2010); see also Fed. R. Civ. P. 26(b)(2)(C)(iii).
The Sedona Conference explains the importance of the Rule 26 proportionality test:
The metrics test set forth in Rule 26(b)(2)(C)(iii) provides courts significant flexibility and discretion to assess the circumstances of the case and limit discovery accordingly to ensure that the scope and duration of discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties’ resources.
The Sedona Conference, “The Sedona Conference Commentary on Proportionality in Electronic Discovery,” 11 Sedona Conf. J. 289, 294 (2010) (footnote omitted).
“If courts and litigants approach discovery with the mindset of proportionality, there is the potential for real savings in both dollars and time to resolution.” John L. Carroll, “Proportionality in Discovery: A Cautionary Tale,” 32 Campbell L. Rev. 455, 460 (2010).
Well-crafted ESI search parameters, including a focus on keywords, are critical to promote speedy resolution of cases as well as to reduce litigation costs and avoid protracted litigation and unnecessary expense. Cooperation and communication are equally critical to expeditious and cost-effective electronic discovery in litigation.
Keywords: litigation, commercial, business, electronic discovery, electronically stored information, search parameters
Angela M. Scafuri is a member of Bressler, Amery and Ross in the firm’s New Jersey office.