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Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: eDiscovery Case Law

In Gardner et. al. v. Continental Casualty Company, No. 13-1918 (D. Conn., Jan. 13, 2016), Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Case Background

In this class action for violations of Connecticut’s Unfair Trade Practices Act, the parties agreed (after some negotiation) to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38,000 documents.  However, after the defendant reviewed these documents for relevancy and privilege, it produced only 2,214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in the lawsuit.

The plaintiffs filed a Motion to Compel, arguing that the defendant “cherry-picked” the produced documents and called the production “incomplete and inadequate”, citing to four documents where they contended that the defendant redacted or omitted “highly relevant” materials.  The defendant countered that it had provided the plaintiffs with extensive discovery over twenty-two months, including 16,800 pages of documents and indicated that it “spent significant resources reviewing the 38,000 documents identified as the result of the search term process,” and provided their own justification for the redactions in the four documents mentioned by the plaintiffs.

The plaintiffs responded that they did not accept the defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are `responsive’ to the discovery requests”, that ESI production based on search term hits only “is a common discovery practice ordered by courts,” and that documents provided by LTCG (the defendant’s third-party claims administrator) were far more comprehensive and informative than those provided by the defendant, confirming that the defendant’s “ESI production is woefully deficient.”

Judge’s Ruling

In considering the plaintiff’s motion, Judge Margolis stated that the “position taken by plaintiffs is simply untenable – defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege…As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.”

To attempt to have the parties resolve the dispute themselves, Judge Margolis ordered that “counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling — ‘sampling and iterative refinement’ or ‘quick peek protocol’ – of the 38,000 documents ‘hit’ by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.”  As for the four redacted documents in dispute, Judge Margolis ordered the defendant to forward unredacted versions “for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents”.

So, what do you think?  Was that a reasonable resolution to the dispute or should the court have ruled one way or the other?  Please share any comments you might have or if you’d like to know more about a particular topic.

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