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Dispute over Production Format and Search Terms for Electronic Discovery Highlights the Need for Cooperation – eDiscovery Case Law


In Saliga v. Chemtura Corp., No. 3:12cv832 (RNC), 2013 U.S. Dist. (D. Conn. Nov. 25, 2013), a discrimination case heard by Connecticut Magistrate Judge Donna F. Martinez, the plaintiff and the defendants had spent a year arguing over the format of production for Electronically Stored Information (ESI) to be used in discovery, as well as relevant search terms, before the plaintiff filed a motion to compel.

Prior to this motion, Judge Martinez had held a status conference and chastised both parties concerning the issue of cooperation, noting that discussions about ESI should begin early in the case under Rule 26(f), which requires that both parties confer in order to develop a discovery plan that addressed “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” However, it was determined that given the current state of impasse, another meeting between parties would not reach a resolution, necessitating court intervention.

The format for production was the first matter addressed. Originally, the plaintiff had asked that the defendant produce emails for discovery in native format, which would contain application metadata and could also contain system metadata relevant to the litigation, such as file creation dates or the identity of the computer on which the email was created. The defendants’ objection stated that “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.”

However, the defendants did not claim any undue burden or expense with regards to the requested production format, nor did they offer a reason why they were unable to comply. Therefore according to Rule 34(b)(1)(c), which states that the requesting party, in this case the plaintiff, may “specify the form or forms in which electronically stored information is to be produced,” Judge Martinez ordered the defendant to produce the requested emails in native format.

The next issue addressed was a complaint by the defendant that two of the requests for production from the plaintiff were overly broad, and therefore unduly burdensome. The plaintiff listed 14 employees to search, and the defendant stated that search results for the employees’ emails yielded more than 925,000 hits. In addition, the complaint claimed this request was a duplicate of the plaintiff’s requested search terms, which caused similar problems.

Prior to the complaint, the parties had failed to agree on the search terms to be used, or how the search should proceed. The unresolved dispute necessitated Judge Martinez’s intervention, despite the fact that the court was “loath to decide the search terms to be used because the parties are far better positioned to do so.” In the discovery request, the plaintiff asked for the defendants to use 12 relevant words and phrases, variously combined with versions of the custodians’ names to create 37 search terms in total. The defendants objected to one of the 12 base search terms, “India Audit,” and claimed that inclusion of the custodians’ names would be “cumulative and unnecessary.”

Judge Martinez agreed that it would be “superfluous” to incorporate the names of the custodians into the search terms, but denied the defendants’ request to discard the contested search term “India Audit” and ordered that it be included.

Finally, the plaintiff’s request for information on the defendants’ data collection process was considered, in light of a letter the plaintiff had submitted to the defendants three months prior that contained “three pages of technical questions about the defendant’s system configuration, acquisition methods and data extraction” and told the defendant “not to produce any ESI discovery until the plaintiff was satisfied that her concerns and questions were resolved.” Judge Martinez rejected this request, stating that “the plaintiff’s questions may not impede the defendant’s production, which must take place immediately.” The plaintiff was advised to address the opposing counsel should she have any legitimate concerns about the procedures for data collection.

So, what do you think? Should the court step in to define search terms when both parties fail to agree on them? Should the plaintiff’s right to specify a production form for ESI supersede standard practices? Please share any comments you might have or if you’d like to know more about a particular topic.

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