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.