Production Format And Search Terms At Play In eDiscovery Ruling

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burden500Last week, the U.S. District Court in Connecticut issued an eDiscovery-related ruling in Saliga v. Chemtura Corp., an employment discrimination case. Plaintiff had filed a motion to compel with a handful of different requests, and the court went through each in turn, making it clear that its intervention is as a last resort:

“The Federal Rules of Civil Procedure, case law, and the Sedona Principles all emphasize that electronically stored information (`ESI’) should be a party-driven process.”…

The plaintiff’s motion was only recently filed. However, for almost a year the parties have been unable to agree on how the defendant should search and produce its emails. During a status conference… the court (Chatigny, J.) expressed dissatisfaction with the parties’ lack of progress. Notwithstanding, little more has happened to advance a compromise resolution on ESI and the parties remain at an impasse. On this record, ordering the parties to meet and confer again would be futile.

(Internal citations omitted)

First things first: form of production. Plaintiff sought emails in native format, and regular readers of IT-Lex may be surprised at defendants’ objection:

The defendant does not argue that production in native format would be unduly burdensome or unreasonably expensive. Instead, it says that its standard practice is to produce ESI in searchable PDF or TIFF and there is “no basis or need” to produce the emails in native format.

You can probably guess how well that objection goes. The court looks to FRCP 34(b)(1)(C), which provides that the requesting party may specify the “form . . . in which [ESI] is to be produced” and, absent any compelling reason not to do so, the defendant here loses out, and the motion to compel in native format is granted.

Next, the court looked at a couple of specific ESI requests, the first of which was production request 8:

the plaintiff seeks all emails from October 2010 to the present written by or received by fourteen individuals as well as “any other employee who was involved in the allegations contained in the Complaint, the supervision of Plaintiff’s employment, in the drafting of any disciplinary warnings, drafting of performance reviews, drafting of performance improvement plans and letters of termination.”

The other was request 61, for “all electronic documents concerning the allegations in the complaint and the Plaintiff’s employment” for the same time period, and also specifies a non-exclusive list of 31 search terms.

Defendants’ objections to these requests include broadness, undue burden, vagueness and more. Before attempting to narrow down the search terms, the court again notes that this should not be the court’s responsibility:

The court is loathe to decide the search terms to be used because the parties are far better positioned to do so… But in view of the parties’ inability to resolve this issue, the court must do so.

The court ultimately decides, without too much explanation, a few things, primarily that using “the custodians’ names as search terms is superfluous”. With this finding, it denies this particular part of plaintiff’s motion, and somewhat narrows the search.

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