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Plaintiff Must Cooperate on Search Terms, Says Court: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Pyle v. Selective Insurance Company of America, No. 2:16-cv-335 (W.D. Pa. Sept. 30, 2016), Pennsylvania Senior District Judge Terrence F. McVerry granted the defendant’s Motion to Compel Plaintiff to Provide ESI Search Terms “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”

Case Background

In this case, plaintiff’s counsel served the defendant with a Request for Production of Documents in July 2016, which sought “all emails, correspondence, memorandum, and/or other documents” from various defendant employees relating to the plaintiff’s employment, particularly her receipt of disability benefits and the termination of her employment. The defendant responded by providing some relevant documents and also advised Plaintiff that “[i]n addition to the documents produced, additional email archives for various Selective employees have been retrieved”,  requesting that “Plaintiff agree with Defendant on appropriate electronic search terms to be used to located [sic] any relevant documents therein.”  After plaintiff’s counsel refused, defendant’s counsel e-mailed plaintiff’s counsel again in early September asking for a “suggested list of search terms . . . so that we can agree on a common set of terms so that the electronic records [Selective] has gathered can be searched for relevance.”  Plaintiff’s counsel responded by saying that the requests “are not requests for access to the email accounts of the individuals referenced in these requests that would necessitate our providing search terms and/or a protocol for the review of these accounts.”

Not satisfied with that response, the defendant filed a motion seeking an order compelling the plaintiff to provide ESI search terms or else relieving Defendant of the obligation to produce any ESI.  The plaintiff objected, arguing that the defendant cited no authority to support its request, nor identified any burden that it faces in locating and producing the requested emails.

Judge’s Ruling

In response to the plaintiff’s argument, Judge McVerry’s stated:

“Plaintiff’s argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, Defendant’s request is entirely consistent with both the letter and spirit of the Federal Rules of Civil Procedure regarding the discovery of electronically stored information and this Court’s Local Rules. It is well settled by now that ‘electronic discovery should be a party-driven process.’…The Federal Rules expressly require counsel to meet and confer on ‘any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]’ Fed. R. Civ. P. 26(f)(3)(C). ‘Among the items about which the court expects counsel to `reach practical agreement’ without the court having to micro-manage e-discovery are `search terms, date ranges, key players and the like.’’…Indeed, this principle is incorporated into this Court’s Local Rules, which direct counsel to ‘meet and confer, and attempt to agree, on the discovery of ESI, including . . . an ESI search protocol, including methods to filter data, such as application of search terms or date ranges.’”

As a result, Judge McVerry granted the defendant’s motion “insofar as it seeks to compel Plaintiff to confer and come to an agreement on the search terms Defendant will use to cull through the additional email archives that Defendant has identified as having been retrieved.”  Judge McVerry denied the defendant’s Motion to Compel Production of Medical Records and Executed HIPAA Authorizations as “premature” since the 30 day time period for the plaintiff to respond had not yet elapsed.

So, what do you think?  Should receiving parties be required to negotiate search terms with producing parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

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