By Michael J. Gray and Emmy H. Koh
Although litigation’s adversarial nature and the desire to keep decision-making close to the vest tend to cut against transparency and cooperation in discovery, being forthcoming and clear about electronic discovery reduces unnecessary court battles, eliminates possible sanctions and, in fact, often reduces the overall costs of discovery. Indeed, cooperation during discovery is not a novel idea. Rule 26(f) of the Federal Rules of Civil Procedure, amended in 2006, expressly provides that parties are required to meet and confer regarding “any issues about disclosure or discovery of electronically stored information,” and specifically, regarding the scope of discovery, the format of production and the assertion of privilege. Other states, such as California, have adopted rules mirroring these requirements. See California Rule of Court 3.724.
In 2008, the Sedona Conference—a nonprofit educational institute composed of jurists, attorneys and academics—issued its “Cooperation Proclamation,” a three page document calling on participants in the civil discovery process in the United States to “promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.” The Proclamation goes on to state that: “Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.” Some may discount the pronouncement as impractical, but a closer evaluation of recent decisions reveals its wisdom.
Since the Proclamation’s publication, courts have increasingly demanded this cooperative approach to the discovery process, leading to negative consequences to those that did not. See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598 (S.D. Tex. 2010) (spoliation of evidence in bad faith led to adverse inference sanctions); Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456 (S.D.N.Y. 2010) (spoliation instruction and monetary sanctions were warranted against investors whose failure to preserve evidence amounted to gross negligence). As of May 31, 2010, more than 100 judges across the country have endorsed the Cooperation Proclamation and more than a dozen courts have cited to the Proclamation in their e-discovery opinions. Notably, in William A. Gross Constr. Assoc., Inc. v. Am. Mfg. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), Magistrate Judge Andrew J. Peck—a leading jurist on electronic discovery and prolific writer on the topic—noted that: “It is time that the Bar—even those lawyers who did not come of age in the computer era—understand” that electronic discovery requires cooperation and transparency between opposing counsel, as well as a working knowledge of how to preserve and produce electronically stored information.” Additionally, there has been a more frequent issuance of judicial opinions sanctioning parties for their failure to comply with their e-discovery obligations.
Transparency does not mean showing your cards as to the merits of the case or your work product; rather, it means that certain decision-making as to the scope and collection of electronic documents is best shared with your opponent and often is a point of negotiation. As one recent article points out: “[C]ooperation in discovery simply demands that parties and their counsel be knowledgeable about their information management systems, the repositories of relevant data (and those that are likely to yield the most relevant and accessible data), and the key players and custodians of information—and that they engage in an open and frank dialogue about these items to formulate a discovery plan that will permit a fair assessment of the case on the merits and be cost efficient. Toward a Less Hostile Discovery Process, Ariana J. Tadler, Kenneth J. Withers.
Specifically, attorneys should (1) try to reach to an agreement, early in the litigation, regarding the sources of relevant data sources as well as those that would be searched during the discovery process and (2) identify the methods that will be implemented in order to search for relevant information, discuss these methods with counsel and, on many occasions, agree to the selection of relevant search terms.
Exchange information regarding the sources of relevant electronic discovery and attempt to reach an agreement regarding which sources will be searched.
Identifying and disclosing the relevant sources of electronically stored information (“ESI”) early on, even those that will not be searched, and agreeing with the opposing party regarding the scope of searches, will avoid costly discovery disputes and allegations of spoliation, as well as streamline the discovery process.
For example, in Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Association, 2009 WL 2243854 (S.D. Ohio July 24, 2009), the court found that a plaintiff was not entitled to compel the costly discovery of backup tapes where the parties had failed to comprehensively discuss the sources of electronically stored information early on in the litigation, and the plaintiff filed a motion to compel these tapes four months after discovery closed, and one month after the plaintiff learned that the defendant had not searched the tapes for responsive information. In declining to “wade into the middle of the ESI dispute” at so late of a juncture in the case, the court noted that the parties’ Rule 26(f) Report submitted at the start of the litigation referred only briefly, and quite vaguely, to ESI. The Rule 26(f) report’s only reference to ESI provided:
The Parties anticipate electronically stored information in the form of e-mails, most of the documents that pertain to the two loans in this case, as well as some of the general documents that are expected to be produced. The Parties are currently discussing the feasibility of producing electronic versions of all materials that are produced in this case.
The court then stated that: “[t]he current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one paragraph boilerplate statements about ESI and waiting for the explosion later.” The court then denied the plaintiff’s motion to compel, and also declined the parties’ cross-requests for expenses and attorneys fees stating that the parties “could have avoided the expenses of this Motion by conferring appropriately early in the case about ESI.”
Similarly, in Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D. N.J. 2009), the court, in resolving a discovery dispute regarding the adequacy of a party’s document collection procedure, noted the desirability of parties meeting to address issues relating to electronic discovery early in the course of litigation. To that effect, the court, citing the Sedona Conference with approval, stated that “agreement by the parties at the outset as to the mode of collection would have been the proper and efficacious course of action.”
Attempt to reach an agreement as to the methods that will be implemented in search for relevant information, including the search terms that will be used to gather responsive documents.
Reaching an agreement with the opposing party regarding any search and retrieval methodology, including any search terms to be used in culling the relevant information, often works best for the producing party. Recent decisions have shown that courts more often order parties to come to an agreement on the issue, and decline involvement in the process of developing these search methods. If the producing party does not reveal their search terms—a decision that will dramatically affect the scope and number of responsive documents—the party leaves itself open to later claims of hiding documents or spoliation. Such claims, which often are not discovered until much later in the litigation, may distract the court from the merits of the case and in some cases lead to drastic consequences, such as monetary sanctions, adverse inferences and even judgment being entered.
Some courts are often unwilling to take an active role in developing automated search methods, leaving the parties to their own devices. For example, in William A. Gross Constr. Assoc., Inc., 256 F.R.D. at 136, a disagreement arose between the parties regarding the use of appropriate search terms to segregate relevant e-mails from irrelevant e-mails. After being put in “the uncomfortable position of having to craft a keyword search methodology for the parties,” the court observed that “the best solution in the entire area of electronic discovery is cooperation among counsel.” Indeed, the court held that in formulating keyword searches for retrieval of ESI during discovery, the parties were required to cooperate, and, at a minimum, carefully craft appropriate keywords with input from ESI’s custodians regarding the words and abbreviations used in the searches. Moreover, the court required that the proposed methodology be “quality control tested” to ensure accuracy in the retrieval of relevant documents.
More recently, in Ross v. Abercrombie & Fitch Co., 2010 WL 1957802, *4 (S.D. Ohio May 14, 2010), the court was charged with resolving a dispute over whether the defendant had produced all relevant documents in response to a production request. The court discussed the difficulties it would have in determining whether additional documents existed, and, if so, the best way for the defendant to go about finding them. In granting plaintiff’s motion to compel these documents, the court instructed the parties as follows:
To the extent that Abercrombie does believe that the documents may still exist, it shall, at the parties’ conference, tell plaintiff’s counsel how it would be possible to do a search for them, and how much, in terms of both time and money, such a search might cost. The parties are encouraged to work out the details of such a search…. If this process does not produce an agreement, the parties shall contact the Court to arrange for a telephone conference at which the issue can be discussed further.
Similarly, in Burt Hill, Inc. v. Hassan, 2010 WL 419433, *8, 10 (W.D. Pa. Jan. 29, 2010), the plaintiff objected to the overbreadth of one of defendant’s document requests. While the court agreed with the plaintiff that defendant’s request for production was exceedingly overbroad, the court stated that the parties’ disagreement “elude[ed] meaningful adjudication” and ordered the parties to “promptly meet and confer to determine whether the scope of Defendants’ [production request could] be narrowed, and/or whether [the parties could] agree upon computer ‘search terms’ [plaintiff could] use to identify potentially responsive documents.”
And, In re Direct Southwest, Inc., FLSA Litigation, 2009 WL 2461716, at *2 (E.D. La. Aug. 7, 2009) illustrates the consequences when one party decides to go it alone and unilaterally determine the appropriate search terms to be used in ESI. Upon being called on to resolve a dispute over the appropriate terms to be used in a document retrieval search, the court, admonishing both parties for not resolving the dispute at the beginning of the discovery process, simply chose the plaintiff’s search terms over the defendant’s. The use of the plaintiff’s list of search terms—which was “much more detailed” and covered “virtually all aspects of defendants’ business”—resulted in an estimated $100,000 of additional costs to the defendant. Moreover, in light of the fact that “the issue raised by this motion should have been resolved at the beginning of the discovery process and not at the end,” the defendant was given just 10 days to comply with the court’s order.
It should be noted that, before a party proposes search terms, it should investigate the possible results of using those precise terms. Courts hold the parties’ to their agreement. In Capitol Records, Inc. v. MP3 Tunes, LLC, 261 F.R.D. 44, 50-51 (S.D.N.Y. 2009), for example, a disagreement arose between the parties after they had reached agreement regarding certain search terms. The court held the parties to their bargain. The court stated,
Whatever the merits of [defendant’s] argument may be, [defendant] previously had agreed to limit Document Request No. 3…. Consequently, [plaintiff] may restrict their production of e-mails responsive to the six search terms that [defendant] suggests to those that also contain the terms [previously agreed upon].”
Additionally, as to keyword searches upon which the parties could not agree, the court employed standards used to determine the discoverability of actual documents. Ordering the defendant to search the e-mail files of each custodian identified by the plaintiffs, the court held that defendant “ha[d] not shown that the production of all of the requested employees’ e-mail communications would be unduly burdensome or that a search of their files would not potentially yield relevant information.”
Simply stated, judges more and more demand that parties cooperate and communicate with each other throughout the electronic discovery process. Failing to convert to this more transparent strategy puts you and your client at risk.
Michael J. Gray leads the Labor & Employment Practice in Jones Day’s Chicago, Illinois, office. As a leader in the area of electronic discovery and the use of technology in complex litigation, Michael speaks across the country to clients and members of the bar on the topic, writes on the practical implications of e-discovery obligations, and participates in the Firm’s e-Discovery Committee.
Emmy H. Koh is an associate in the Labor & Employment practice group at Jones Day in Chicago, Illinois.
© 2010 Michael J. Gray, Esquire and Emmy H. Koh, Esquire. This article was published in the November/December 2010 issue of The Bencher, the flagship magazine of the American Inns of Court. Inquiries about this article should be directed to the American Inns of Court.