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In a Second Case, Judge Specifies Search Terms for Parties to Use: eDiscovery Case Law

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

In Abbott v. Wyoming Cty. Sheriff’s Office, No. 15-CV-531W (W.D.N.Y. May 16, 2017), New York Magistrate Judge Hugh B. Scott granted the plaintiff’s motion to compel and defendant’s cross-motion in part, ordering the defendant to perform additional production over a disputed time period, based on a list of search terms ordered by Judge Scott.

Case Background

In this case concerning allegations that the defendant deprived the plaintiff of promotions and work shifts or assignments that she was otherwise eligible to receive, for no reason other than her medical condition of epilepsy, the plaintiff (in February 2016) requested all emails sent and received by three key custodians “from September 2009 through the present, in native, electronic format, subject to an agreement of the parties regarding search terms.”  The defendant responded in September 2016, producing approximately 1,004 pages of responsive email messages and a privilege log containing 369 separate entries.

That request appeared to be fulfilled until the plaintiff’s deposition in February 2017, during which the plaintiff described discrimination and retaliation occurring through the present time. The description of ongoing improper conduct prompted the suspension of her deposition and different protests from each side. The defendant protested that the plaintiff did not describe ongoing conduct in her responses to its interrogatories, while the plaintiff protested that the defendant’s response to the plaintiff’s request did not include any email messages dated after February 2016. The pending cross-motions soon followed.

Judge’s Ruling

In looking at the complaint and the plaintiff’s second supplemental response, prepared after the start of the plaintiff’s deposition, Judge Scott noted that the plaintiff “mentions only two specific events that occurred after any produced email messages dated from February 2016”: “a denial of transport duties that occurred as recently as February 9, 2017; and an inability to apply for a sergeant’s position in July 2016”, along with a few written warnings.

Observing that the request “does not have to be revisited for any other topics”, Judge Scott stated that “[o]n at least one prior occasion, the Court has crafted discovery production based on specific search terms”Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S (W.D.N.Y. Dec. 9, 2014), which we covered here.  As a result, Judge Scott ordered the defendant to “supplement its response to Request 15 by searching for email messages dated between March 1, 2016 and May 1, 2017 that contain Abbott’s name, or any name mentioned in her second supplemental response, plus any of the following search terms:

  • sergeant
  • cell phone
  • control room
  • booking
  • transport
  • court hours
  • late OR lateness
  • surveillance OR camera”

Judge Scott denied the plaintiff’s motion “to the extent that it seeks any other relief”, observing that “[e]ven with allegations of ongoing retaliation, defendants at some point need to have some finality about what they are facing.”

So, what do you think?  Should courts craft search terms for parties to use in litigation?  Please share any comments you might have or if you’d like to know more about a particular topic.

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