eDiscovery Daily Blog

• April 25, 2013

In Robert Bosch LLC v. Snap-On, Inc., No. 12-11503, (D. ED Mich. Mar. 14, 2013), Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform.  The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

The plaintiff filed a motion to compel the defendant to perform the following two search terms for discovery purposes (where “!” is a wildcard character):

• (diagnostic! and test!), and
• ([ECU or “electronic control unit”] and diagnostic!)

Under Fed. R. Civ. P. 34(a)(1)(A), a party must produce relevant documents and electronically stored information. While the defendant did not dispute that the search terms are relevant, they argued that the terms were so broad and commonly used in day-to-day business that searching the terms would be burdensome and result in overproduction by including large portions of their business unrelated to the case.  The defendant’s arguments were twofold:

1. Overbroad: The defendant claimed that “the word ‘diagnostics’ is included in at least one custodian’s email signature and that ‘the vast majority of documents in Snapon’s Diagnostic Group include the word `Diagnostics,’ thereby effectively reducing the disputed terms to `test!’ and `(ECU or “electronic control unit”).’”
2. More Appropriate Alternatives: The defendant contended that the term “diagnostic” would be sufficiently searched by already agreed upon searches which pair “diagnostic” with “more narrowly tailored conjunctive terms, such as ‘plug’ and ‘database,’ that are not as common as ‘test’ and ‘ECU.’” The defendant also claimed that the search terms were unnecessary because they agreed to run searches of all of the variations of the names of the accused products.

Judge Cleland stated that he found the defendant’s arguments “unpersuasive”, stating that “[e]ven though Snap-on has agreed to search all variations of the names of the accused products, the disputed search terms may uncover relevant documents that do not contain the accused products’ names. The court is not convinced that the terms “test” and “ECU” are significantly more common than “plug” and “database” such that searching (diagnostic! and plug) is reasonable but searching (diagnostic! and test!) is burdensome.”

Judge Cleland also suggested techniques “to limit any overproduction”, including not producing emails in which the term “diagnostic” was found only in the signature portion and using proximity connectors (agreed-upon with the plaintiff) in the searches.  He also recommended that the defendant “should communicate the proposed techniques to Bosch prior to running the searches” and that the “parties should discuss and agree upon the details of the techniques so that the searches are conducted without generating further motion practice on the matter.”

The judge, however, denied the plaintiff’s request for sanctions in the form of reimbursement of attorneys’ fees and expenses for filing the motion to compel, indicating that the defendant “has provided logical reasons for objecting to the disputed search terms”.

It’s interesting that the defendant didn’t provide document retrieval counts and try to argue on the basis of proportionality.  Perhaps providing the counts would reveal too much strategy?  Regardless, it seems that the wildcard search for “test” could be argued as potentially overbroad – there are 60 words in the English language that begin with “test”.  It looks like somebody is getting “wild” with wildcards!

So, what do you think?  Could the defendant have made a more effective argument, based on proportionality?  Please share any comments you might have or if you’d like to know more about a particular topic.

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