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Split Decision between Plaintiff and Defendant Regarding Search Terms – eDiscovery Case Law
In Federal Deposit Insurance Corp. v. Giannoulias, No. 12 C 1665, 2013 U.S. Dist. (N.D. III Oct. 23, 2013), Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.
This discovery dispute arose in a lawsuit filed by the Federal Deposit Insurance Corp. (FDIC) as a receiver for Broadway Bank, which alleges that several former officers and directors of the now-closed bank had “negligently approved” 20 commercial real estate loans, resulting in losses to the FDIC of $114 million. During the first phase of discovery, the defendants had served 242 requests for production, and in response the plaintiff produced 500,000 pages of documents that pertained to the loans in question.
The dispute occurred during the second phase of discovery concerning the ESI, which in this case consists of mostly emails. The plaintiff and defendant had cooperatively generated a list of around 250 unique search terms, which the plaintiff applied to the ESI and produced approximately 150,000 hits. The defendant then requested that six further search terms be included. Combined, the six terms produced around 16,800 additional hits.
The plaintiff disagreed with the addition of the search terms and both parties failed to reach an agreement regarding what, specifically, should be done with the data resulting from the finalized ESI search terms. A proposal from the defendants requested that the plaintiff be required to review the filtered ESI to determine which materials were responsive to the defendants’ request, and also that the plaintiff organize and label the production of filtered results.
However, the plaintiff contended that the proposed ESI Protocol would be “unduly burdensome,” and instead proposed to provide a database in Relativity to contain all documents generated by the finalized search terms. The defendants would then be allowed to search and review the database, identify the documents of interest, and subject the chosen documents to a review by the plaintiff for privilege before being furnished with any non-privileged documents.
Judge Grady’s ruling split the additional six search terms in question, allowing four specific and relevant terms to be added to the discovery, and disallowing two general terms: “capitalized” and “capitalization.” This decision was based on the nature of the plaintiff’s business, and the view that “the connection between the terms ‘capitalized’ and ‘capitalization’ and the complaint’s core negligence allegations is tenuous, and the likelihood of entirely irrelevant hits appears high.”
With regards to responsiveness review and organization of document production, the court ruled that while the plaintiff must filter the discovery documents according to the agreed-upon search terms by conducting “a diligent search, which involves developing a reasonably comprehensive search strategy,” the plaintiff is not obligated to “examine every scrap of paper in its potentially voluminous files” to comply with discovery obligations. Further, the court ruled in favor of the plaintiff toward organizing and categorizing relevant ESI according to the numerous discovery requests by the defendants, agreeing that such a process would “impose a substantial burden” on the plaintiff.
So, what do you think? Is the plaintiff meeting discovery obligations without a full responsiveness review? Should all of the requested search terms have been added? Please share any comments you might have or if you’d like to know more about a particular topic.
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