Louisiana Law Blog

By Esteban Herrera, Jr.

In the e-discovery world, you need to be ready to make your case for using your proposed keyword search terms.

In the case of Custom Hardware Engineering & Consulting, Inc. v. Dowell, 2012 WL 10496, a dispute between the parties as to what search terms were to be used by the defendants to search for and respond to discovery made its way to the judge. The judge was not happy, and he “advised” the parties “to attempt with more civility to resolve similar discovery disputes in the future through agreement or other means." The defendants wanted to limit the amount of potentially responsive ESI by searching only for exact matches of key search terms. The plaintiffs’ search terms (identified in their discovery requests) were much broader. The defendants argued that using the plaintiffs’ search terms would produce an unreasonable number of irrelevant results. The court rejected the defendants’ argument, finding that the defendants had not submitted evidence to support their contention. In addition, the court held there was no basis for that objection under the Federal Rules of Civil Procedure. The court found the defendants’ proposal would "fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI.” The court said “whether information is discoverable under Rule 26(b) does not turn on the existence of an exact match in capitalization in phrasing." The court said the defendants’ proposal would prevent the plaintiff from obtaining discoverable information and was inconsistent with the broad scope of discovery.

This case is another example illustrating how courts do not want to be put into a position of creating keyword search terms for parties. Courts prefer that parties resolve those issues among themselves. But, if you must involve the court, you need to be ready to establish, with evidence, how unreasonable a particular search term can be. The defendants in this case failed to do that.

By Esteban Herrera, Jr.

Even for a “small company,” the failure to comply with discovery obligations to preserve electronically stored information (ESI) can be dangerous.  The case of Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. Cal. 2011) involved a truck accident, but the lawsuit quickly reached the point where the plaintiff sought a default judgment against the defendant for failure to preserve emails and other ESI.  The court in Perez found the defendant had breached its discovery obligations, noting the following:

• Two of the defendant’s executives, including the owner, admitted they made no effort to retrieve potentially relevant ESI from their computers. 
• The court rejected the defendant’s argument that it was a “small company,” that the case was not document intensive, and that most relevant communications took place by phone or in person.   The court said these facts were not valid explanations for the minimal to no effort made by the company to preserve relevant ESI, including documents sent, received, or created by key players.
• According to the court, the fact that one of the key players’ computer crashed was “no excuse” given that the witness admitted he did not backup any of his ESI.  The court reiterated the following warning to lawyers:  “Defense counsel's apparent failure, in this electronic age, to verify with appropriate representatives of their client whether there was an e-mail backup system, cannot be countenanced.”
• The court found the company had “proceeded with business as usual, without making any special effort to retain ESI relevant to this litigation.”

Although the court concluded the death penalty (a default judgment) was inappropriate in the case, the court did award monetary sanctions.  This case is just another example that even small companies must pay attention to their ESI preservation obligations once those obligations are triggered.

By Katie D. Bell

In The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., 685 F.Supp.2d 456 (S.D.N.Y. 2010), Judge Scheindlin—author of the renowned Zubulake decisions—further develops the boundaries of discovery duties in a lengthy opinion. Although the opinion does not require parties to meet a standard of perfection during discovery, the opinion serves as an important guide that offers concrete rules and potentially burdensome standards that attorneys should heed to avoid sanction.

Writing systematically, Scheindlin initially frames the fundamental concepts underlying the nature and scope of a party’s duty to preserve, collect, review, and produce requested records during discovery:

The first [critical issue] is plaintiffs’ level of culpability-that is, was their conduct of discovery acceptable or was it negligent, grossly negligent, or willful. The second is the interplay between the duty to preserve evidence and the spoliation of evidence. The third is which party should bear the burden of proving that evidence has been lost or destroyed and the consequences resulting from that loss. And the fourth is the appropriate remedy for the harm caused by the spoliation. (1)