#CaseoftheWeekCase Law

#CaseoftheWeek Episode 61: Planning for Search Terms and Issues of Proportionality

In #CaseoftheWeek Episode 61, Kelly Twigger of eDiscovery Assistant discusses the Court’s role in intervening in the process of deciding on search terms and when a court decides to turn things over to a special master at the parties’ expense. This episode really analyzes the need for planning specifically when dealing with search terms to avoid issues of proportionality.

The decision is from March 24, 2022 in Deal Genius, LLC v. 02 Cool, LLC 2022 WL 874690 (N.D. Ill. 2022) and was presided over by United States Magistrate Judge Jeffrey Cole.

Good morning, and welcome to episode 61 of our #CaseoftheWeek for 2022. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. I’m so happy to be here with you today. Thank you so much for taking a few minutes to join me to discuss our decision of the week.

Each week we bring you the Case of the Week through our partnership with ACEDS, the Association of Certified E-Discovery Specialists. The goal [of the Case of the Week] is to choose a recent decision that’s come out in eDiscovery and talk to you about the practical implications, about what it means for you, your practice, for your clients, and really how to do discovery better.

You can find a link to the write up that Doug Austin did about this decision on his eDiscovery Today blog.

This is a really interesting one. Those of you who tune into the Case of the Week with me regularly know that I really like to use the case law in our database as teaching. This week’s case is a huge lesson in the value of understanding and planning for eDiscovery in a case and in understanding the role of proportionality and when to go to the Court and how cooperation can make you really have a much more both cost effective and meaningfully effective (as it goes to the merits) plan for eDiscovery. Let’s talk about this week’s case.

This week’s decision comes to us from the case titled Deal Genius vs. 02 Cool, LLC. This is a decision from the Northern District of Illinois from Magistrate Judge Jeffrey Cole. If you’re familiar with Judge Cole, he has written a number of decisions on eDiscovery. We have 75 decisions alone from Judge Cole in our database, and I think if we had to run a poll of which judges have the most decisions in the database, Judge Cole would be up there.

This is a very recent decision from March 24th, 2022—just from a couple of weeks ago. As you know, in eDiscovery Assistant, we tag all of our decisions with our proprietary issue tagging structure. The issues associated with the case this week are:

  • special master,
  • search terms,
  • failure to produce,
  • proportionality,
  • cooperation of counsel, and
  • text messages.

Let’s kind of dive into the facts here. We’re really before the Court on a motion to compel, which is pretty standard in eDiscovery case law, but this decision is one that I would suggest if you are in charge of educating your lawyers or if you are a litigator who is trying to advocate that they need more education in eDiscovery this is a good decision to read and put in front of folks. It is short. It has many very useful quotes that are very important to being able to essentially preach the value of understanding key concepts in eDiscovery and planning for ESI even when you’re bringing a case.

On this motion to compel, I will tell you that in this particular decision, which I think supplements a number of other things in the record, the Court kind of jumps around on the facts. I’ll try to pull those together for you today.

The value of the case, according to some random facts that are thrown about in the decision, appears to be somewhere around $90,000. Both parties in this case make fans that hang around one’s neck on a lanyard. Think about if you’re out at a hot event or something and you’re putting fan around your neck to try and keep yourself cool. It’s the design of the fan as it hangs on that lanyard that is an issue here.

The plaintiff’s design connects on both sides and hangs straight down the neck. The defendant’s design hangs only on one side of the fan, and the fan sits at an angle as it hangs around the neck. According to the decision, the defendants alleged that the plaintiff’s design infringes on their patent. The decision does not note what the original claims are that the plaintiff has brought.

Discovery opened in August of 2021 and was set to close in February of 2022. In the fall, shortly after discovery started, the parties told the Court that they did not propose deviating from the schedule. Then in November, two or three months after discovery started, the parties could not even agree as to whether or not plaintiff’s initial round of production of documents should have included emails. According to the Court, emails are, “ubiquitous and important in modern business.”

The parties spent over five months from the time discovery opened until it came to the Court arguing over five proposed search terms. Two weeks later, the party sought and received a four month extension to the discovery schedule that they had proposed not deviating from, according to the Court. The new deadline has been moved to June of 2022.

Three months later—now we’re into January, February of 2022—and six months into discovery, parties had made absolutely no progress on defining search terms or whether or not emails would be produced by the plaintiff. The party is engaged in a series of correspondence of nasty emails and letters exchanged between counsel and one Rule 37 conference.

The Court has a number of really key quotes here that both talk about the importance of email and text communications in discovery, as well as it doesn’t understand at all why the parties are engaging in this back and forth, rather than one party coming to the Court with some proposed solutions on how to resolve the search term issue.

One of the quotes from the Court that I think is really important here is this one:

Even though it cannot be denied in the world in which we live, that emails of a party’s employees may be the most compelling form of evidence, the value of emails and text messages can be particularly significant in litigation due to the fact that the ease of sending or replying to such messages can cause people to say things they might not otherwise say in traditional correspondence. Indeed, emails are often replete with unrehearsed, spontaneous statements that surpass in simplicity and frankness and ease of understanding other far more complicated bits of evidence.

The Court goes on to say that, simply stated, electronic communications have the potential to provide the proverbial smoking gun.

Those are really important statements that the Court is making here. We grapple every day, those of us who engage in eDiscovery 24/7, with all of these newfangled technologies that are coming out all the time. We’re talking about Slack. We’re talking about instant messaging platforms. We’re talking about TikTok, but email is still the primary form of communication within the corporate world. It still remains one of the most important elements of ESI, sources of ESI that need to be considered when you’re planning for litigation.

What we find here is that the parties really can’t agree on the number of emails that are at issue. The Court notes that at different stages of the briefing, they’re talking about 50,000 emails, maybe 60,000 emails, maybe just 10,000 emails. The Court does note that it is the plaintiff’s obligation when it brings a piece of litigation to understand its role and obligations in discovery, and that is that it is forced to sift through and review for relevance and production all of the potentially responsive emails that would be at issue in the litigation. You’re going to bring a case; you are responsible for the discovery that is required to be put forth in that case.

The Court notes really distinctly here that instead of the parties working cooperatively to resolve this issue, which we’ve discussed, now how would you resolve this issue? If you tuned in to the University of Florida [Levin College of Law] E-Discovery Conference with us last week, we discussed this very issue on the parties working together on search terms in our case law section, and Judge McCoy, who was one of our panelists from Florida, noted specifically that in his view, the party who is producing electronic information has the duty to provide search terms and that those search terms should be based on a review of the data. That is really the only common sense approach to using search terms to identify responsive information.

Here, clearly, there’s no discussion, there’s no work by the plaintiffs who have done that according to what is in this decision. Now, there may be other facts that are apart from the decision that we don’t know about, but we can only go for our case of the week discussion based on what is included in the Court’s actual written decision.

Based on the Court’s decision, essentially, the Court says the parties haven’t even whittled this dispute down far enough for meaningful Court intervention. The Court says:

It cannot and ought not take over the selection of search terms and conjunctive terms that may assist in locating pertinent documents. That is Counsel’s job, not the Court’s. Indeed, courts are prohibited in all contexts from doing the work of counsel. Requiring the Court to perform what is obviously the work of counsel would be patently unfair. It would require the Court to weigh in on one side to the possible disadvantage of the other and would be inconsistent with the adversary system itself. Indeed, the Supreme Court recently emphasized that, ‘In our adversarial system of adjudication, we follow the principle of party representation.’

The Court really goes on, and this is where I feel like the language from the Court here and the sources that the Court cites for some of these quotes are really key to educating folks on the value of ESI.

Essentially, what we have here is months and months of fighting about search terms, letters back and forth, and email exchanges that all could have been avoided if plaintiffs had come to the defendants with a proposal for here are the search terms that we propose, and here’s the analysis that those are based on. If you want us to provide hit reports, if you want to do some more back and forth negotiation about search terms, we can do that, but just simply arguing over what the search terms are in correspondence isn’t helpful.

The Court goes on to state that Counsel would do well to keep before them as a living faith Judge Moran’s commonsensical but profound insight, which the Court quotes:

The discovery rules are not a ticket to an unlimited, neverending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts and no more.

The Court noted that Counsel here have way more work to do. They need to accomplish what needs to be done and to take more reasonable positions and take them quickly and efficiently. The Court notes that if experience is any guide, the June discovery deadline is going to come very quickly and Counsel are not going to be prepared for it if they did not resolve these document production issues.

We’ve discussed before the practical implications of getting documents late in discovery. It precludes you from having sufficient time to prepare for depositions. It precludes you from being able to follow up on those depositions with additional document requests. It precludes you from understanding the viability of third party discovery. There are numerous reasons why you need to get documents early on in a case, and these protracted fights over search terms and how you’re going to provide those documents don’t do anyone any good.

If you’re in a situation where the other side is really being dilatory in this, my recommendation is that you go to the Court sooner than later and you essentially have the Court lay down the law as to how the process is going to be entertained, and you come to the Court with a reasonable process that you propose and then let the Court rule on that.

Again, we discussed this in the UF Conference. If you register for that conference and didn’t get a chance to review the case law panel, you can view that entirety. You should have received the information to be able to review that panel in its entirety as well as the rest of the sessions from the conference. I think they’re available for the next six months.

The reason that I suggest that is because we had a very detailed discussion between Judge McCoy and Maria Salacuse of the EEOC, as well as myself about this issue from the perspective of both sides of the V, as well as the bench. The reality is this is a hard thing to master, but it requires that the lawyers get into the data and really understand what they’re talking about in order to be able to negotiate from the basis of the data. Just picking search terms out of the air is as useful as picking search terms out of the air if you haven’t looked at or run those search terms across data.

Get into the data, it is not that hard. If you need suggestions or advice on platforms to be able to use for that, you’re welcome to reach out to me or to others who are involved in the eDiscovery Conference at UF. This is stuff that lawyers need to know.

The Court goes on in this case to note that the plaintiffs brought this suit as we discussed, and that it’s on them to perform the searches and sift through a large number of emails because that’s how the discovery of ESI works.

The Court notes, “The discovery is almost always costly and difficult, but by its very nature it’s burdensome and often intrusive, but that does not make discovery improper, it only becomes so when it is unduly burdensome.”

The Court also discussed in some context the proportionality issue and looked at whether the parties had even addressed proportionality, which it found that in the brief submitted to the Court that it didn’t even address them, especially from the defendant. The defendant didn’t address proportionality at all in its motion to compel.

The Court really emphasizes proportionality is a big issue here. It calls it a vital limitation on pretrial discovery and says that it requires, “a common sense and experiential assessment”, which is consistent with everything that we talk about on the case of the week. You’ve got to dive into what is the data that you have, what are the search terms that you’re seeing, and what are you going to propose to the other side that’s going to provide responsive data?

The Court also reiterates here that proportionality has been a part of Federal Rules of Civil Procedure since long before the 2015 amendments that brought it into the forefront in Rule 26 (b)(1), and that the move in 2015 to do that and bring it more up front was designed to emphasize the role of proportionality specifically as it relates to ESI.

Based on all of that, the Court denies the motion to compel and says to the parties, “you guys need to go back and you need to work this out, you need to do what you should have done six months ago, and it’s going to prejudice you as it comes to the close of discovery, and you haven’t dealt with what you need to deal with.”

We’re going to keep our eye on this case because I suspect that there will be other discovery disputes that come up as the parties get closer to the discovery deadline. We’ll keep you posted on those as far as the Case of the Week goes.

All right, so what are our takeaways?

Planning for discovery here would have prevented this issue from plaintiffs if the plaintiffs were planning to to bring litigation, the identification, potential collection, or at least review of potentially responsive data to understand the scope of what they would have to provide in discovery is completely paramount. Essentially, if you’re bringing a case worth $90,000 and you’re looking at 50,000 emails, we know from previous discussions that we’ve had that simple review of those 50,000 emails would be a dollar document, plus a secondary level review, plus privilege review. That alone is way outside the bounds of being proportional to the value of the case if you’re already talking about spending more on discovery today for an initial production from the plaintiff.

The plaintiffs really needed to have a plan here. They needed to go into this case with a discovery plan for how to keep costs proportional to the value of the case. That’s something that we talk about all the time. That’s our first tenant: plan, plan, plan.

Second takeaway is to know, understand and leverage the proportionality limitations in Rule 26 and your state equivalent, and use those to keep the discovery scope tailored to the value and other needs of the case. That’s essentially what the judge says here. He says two things, one, you guys need to stop arguing and get together and actually figure out a plan, because that’s not my job. Second, you need to take into account the value of this case and what it is that you’re asking for, and you need to deal with those proportionality considerations.

Next, takeaway. The way to solve these problems, as I already kind of mentioned here, is to really know and understand how ESI works and what you need to do to bring proposed solution or search terms to the other side and how to craft a cost effective and appropriate strategy for discovery given what is proportional. You got a plan, you’ve got to do something in advance and the defense needs to come in and say, look, this is how we need to do this. A lot of times we find that we’ve got one person on one side of the case that is more knowledgeable about these ESI issues. The tone and the tack that you take with opposing counsel in trying to resolve these issues is really key.

If you propose a process for the plaintiffs here to follow, if the defendants had proposed a process, which it looks like in some of the filing that they did propose some sort of process, but it was buried in the reply brief, and the Court took a lot of issue with that. They found that that wasn’t appropriate at all for a reply. It should have been in the initial brief accompanying the motion.

If the defendants had come to the plaintiffs with a reasonable process and the plaintiffs refused to follow it, then that’s a basis to go to the Court. You go to the Court with something that’s well thought out, well crafted, well planned, and say, “this is where we want to start Judge. We can’t get anything from the other side,.” If you’re the plaintiffs, you go to the Court and you say, “Judge, this is what we’ve proposed and here’s the reason that we’ve proposed this. Here’s our reasonable basis for proposing this. It’s proportional, it is reasonable, it meets all the elements of the Federal Rules of Civil Procedure to move this forward.”

That’s where the Court can step in, but when you come to the Court with some amorphous, “hey, Judge, we can’t agree on anything,” then the Court’s going to say, “that’s not our job, you guys go back and agree, and if you waste your entire discovery period failing to agree, then you’re not going to get a new discovery, and your clients are going to be prejudiced as a result.”

If you don’t know how to engage with ESI, find someone to help you. There are literally hundreds, if not thousands of folks out there who can sit down with you and help you craft an appropriate strategy and find an appropriate tool to be able to use to deal with ESI very quickly. There are many what I call DIY platforms that allow you to upload data directly from your client, directly from you to be able to get into the data very quickly and to be able to run search terms and understand the value of the data that you have in order to provide something appropriate to opposing counsel.

You can use consultants and service providers. You can use attorneys like myself. There are many people out there who can help you with these things, and if it’s not a skill that you or your firm has, you’ve got to find someone to help you otherwise, you’re not fulfilling your obligations ethically.

Finally, last takeaway. The time and the money really spent briefing in this case could have moved discovery forward exponentially and it seems to me that it was really not a good use of time and money with regard to the value of the case. I mean, to be briefing on a motion to compel on a case that’s worth $90,000 seems a little bit out of bounds. Now, it may be that the value of the case is distinctly different than what is discussed in this particular decision and if so, that would change the analysis.

All right, that’s our Case of the Week. Thank you so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

If you are interested in doing a demonstration of the eDiscovery Assistant database, you can join our weekly demos.

If you are an ACEDS member and are interested in doing a trial at the platform to study for your ACEDS exam, please reach out to us at ACEDS@eDiscoveryAssistant.com and we’ll help you get that set up. There’s also a discount for the annual membership available to ACEDS members and you can reach out at that same email address ACEDS@ediscoveryAssistant.com to get that set up.

Thanks so much. Stay safe and healthy out there and we’ll see you next week. Bye.

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