Custom Hardware Engineering & Consulting, Inc. v. Dowell, No. 4:10CV00653 ERW, 2012 U.S. Dist. LEXIS 146 (E.D. Mo. Jan. 3, 2012)
The court outlined a three step process for the parties to conduct discovery of ESI in accordance with Ameriwood Industries, Inc. v. Liberman, No. 4:06CV524-DJS, 2006 U.S. Dist. LEXIS 93380, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006). The first step required the parties to select a forensic expert to make mirror images of the defendants’ hard drives and recover available ESI from the hard drives. Next, the forensic expert would recover deleted information and make the data accessible to the Defendant in a reasonably searchable form. Lastly, Defendants’ counsel would review the information for relevance and responsiveness, supplement discovery responses where appropriate, and produce responsive and non-privileged data to plaintiffs’ counsel, along with a privilege log.
Plaintiff filed a motion to compel discovery, and Defendant responded that all responsive, non-privileged information had been disclosed. The court ordered both parties to develop and submit search terms but Defendants objected to plaintiff’s search terms on the grounds of overbreadth.
The court observed that although keyword searches were commonly used in electronic discovery, there were limitations and risks associated with using them. Citing the Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007), the court noted that keyword searches could “capture many documents irrelevant to the user’s query[,]” but at the same time “exclude common or inadvertently misspelled instances of the term[.]” Id. Therefore, “keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages).” Id.
Responding to defendants’ objection that plaintiff’s list contained common terms which would produce too many results, the court found that defendant’s had produced no evidence to support their claim, citing Rule 26(b)(2)(B)’s requirement that the party objecting to the discovery of ESI “must show that the information is not reasonably accessible because of undue burden or cost.”. Defendants’ objection that privileged information would be produced was rebutted by the fact that defendants could produce a privilege log. Finally, defendants’ contention that some of plaintiff’s terms would produce irrelevant information was merely a conclusory statement.
On the other hand, defendants’ assertion that an exact match between the terms’ phrasing, capitalizations, or both, was “problematic and inappropriate.” Misspellings or variations of the terms would be missed. The court found that under Rule 26(b), whether information was discoverable did not depend on the existence of an exact match in capitalization or phrasing—defendants’ proposal would prevent plaintiff from obtaining discoverable information. The court ordered that plaintiff’s search terms be used.