eDiscovery Daily Blog

Court Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: eDiscovery Case Law

In You v. Japan, No. C 15-03257 WHA (N.D. Cal. Sept. 16, 2015), California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Case Background

In this putative personal injury class action involving claims against numerous defendants for allegedly contributing to sexual violence against them when they were kept as “comfort women” for members of the Japanese military during World War II, one defendant, a newspaper business, sought permission to preserve documents by alternative means to the Court’s required procedures.

This defendant had already retained an electronic, searchable database of all of its articles back to 1992 and was also retaining the versions of articles that are placed in a proprietary application used for laying out each edition of the newspaper for 90 days. However, the defendant contended that retention for longer than that could slow down the system or cause it to crash, indicating that installing a new storage system would cost $18 million and could take up to eight months.  As a result, the defendant filed an administrative motion for miscellaneous relief, seeking permission to employ an alternative method of preserving the documents as used in the proprietary application, namely by preserving articles only if they contain one of four relevant search terms.

The plaintiffs opposed this request, arguing that the defendant’s proposed solution could lead to the destruction of evidence of its state of mind in selecting and editing its articles, since the version of articles in the proprietary application are the only versions that reflect a particular intermediary stage of bringing those articles to publication.  They also contended that the proposed search terms are insufficient because the defendant had also used the term “voluntary corps (teishintai)” in articles about comfort women.

Judge’s Ruling

Judge Alsup, observing that the plaintiffs “do not, however, argue that articles with that term would not have otherwise been preserved under the proposed search terms, nor have they identified any other search terms that should be included”, found “that Sankei’s proposal, if amended to include the term “voluntary corps (teishintai),” is sufficiently broad to preserve the versions of articles in the proprietary application that may be related to the issues in this case.”  As a result, he granted the defendant’s motion.

So, what do you think?  Is limiting preservation to documents responsive to a small set of search terms a good idea?  Please share any comments you might have or if you’d like to know more about a particular topic.

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