eDiscovery Daily Blog
Court Acknowledges Lack of Expertise to Recommend Search Methodology, Orders Parties to Confer: eDiscovery Case Law
In ACI Worldwide Corp. v. MasterCard Technologies, LLC and MasterCard International, Inc., 8:14CV31 (Jul. 13, 2015), Nebraska Magistrate Judge F.A. Gossett, acknowledging that the Court “simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner”, ordered the parties to “once again” confer in an effort to reach an agreement regarding the search methodology to be employed by the defendants in retrieving the information requested by the plaintiff.
In this action where the plaintiff alleged the defendants violated a licensing agreement and disclosed confidential information regarding the plaintiff’s middleware, the plaintiff sought ESI from the defendants to determine whether they continued using information regarding the middleware after expiration of the license agreement and whether they still use it in their source code today.
The defendants objected to producing the ESI as requested, stating that the requests were burdensome and also claiming risks that the requests posed to the defendants’ production systems. The plaintiff, in an effort to address the defendants’ concerns, revised the discovery requests several times and devised a search protocol for the defendants to use in retrieving the requested information – when the defendants refused to use the devised search protocol, the plaintiff filed a motion to compel.
Noting that “Defendants do not dispute the relevance of the requested information”, Judge Gossett found that “Plaintiff has shown a particular need for the information and that the information is relevant to the issues involved in this action”. Judge Gossett stopped short of granting the plaintiff’s motion though, stating:
“However, the Court simply does not have the expertise necessary to determine the best methodology to be employed in retrieving the requested materials in a safe, non-obtrusive, and cost-effective manner. Based on the information before it, the Court does not even know whether a search methodology or protocol exists (or could exist) which would allow the requested information to reasonably be retrieved.”
As a result, Judge Gossett chose to “order the parties to once again confer in an effort to reach an agreement regarding the search methodology to be employed in retrieving the requested information”, with a plan to “refer the matter to a special master” if the parties would be unable to agree.
So, what do you think? Should the court have been able to recommend the methodology or was the judge wise to order the parties to try again to work it out? Please share any comments you might have or if you’d like to know more about a particular topic.
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