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The first line of the Court’s opinion says it all: “This case highlights the dangers of carelessness and inattention in e-discovery.” In this particular instance, “carelessness” and” inattention” to the nature, scope, and parameters of search terms and locations in a discovery stipulation almost resulted in a required document review of more than 95 million pages and a multi-million dollar bill for the Plaintiff. While the court here did not require Plaintiff to complete the review, citing the unreasonable burden and expense, this case should serve as a reminder to attorneys of the importance of well-crafted electronic discovery requests and a warning of what could occur should they fall short.
When beginning the discovery process in this case, Plaintiff and Defendant stipulated that Defendant would hire an expert to run a keyword search of Plaintiff’s computer network, servers, and related storage devices. Plaintiff would then conduct a privilege review of the documents produced and provide the non-privileged material to Defendant. The seemingly routine and relatively simple discovery process produced heart attack-inducing results, however, due to Plaintiff’s less than diligent conduct in approving Defendant’s overbroad discovery inquiry.
The search terms to which Plaintiff and Defendant stipulated numbered more than 50 and were run in French as well as English. Many of the search terms were general in nature. In addition, the search “was not limited to targeted document custodians or relevant time periods. Indeed, the search was not even limited to active files.” The search extended to “unallocated space”—areas of computer memory in which there is no write-protection and in which deleted and partially deleted files and other temporary data may often be found.” Accordingly, the results returned from the unallocated space alone numbered 64, 382,929 hits, representing approximately 95 million pages of data.
Plaintiff, in a telephone conference with the Magistrate Judge and the Defendant, requested to be excused from conducting a privilege review of the 95 million documents found in the unallocated space, citing the sheer burden of review and expense. The Magistrate Judge permitted Plaintiff to withhold data from the unallocated space but allowed Defendant to seek reimbursement from Plaintiff for their expenses incurred in extracting and searching the data. Defendant appealed.
On appeal, the court upheld the Magistrate Judge’s decision and agreed the review would result in too few benefits to justify the massive burden and expense required of Plaintiff to undertake it. The court noted Plaintiff “should have exercised more diligence before stipulating to such broad search terms, particularly given the scope of the search” but found that “while Plaintiff should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.” Interestingly, it appears the very magnitude of Plaintiff’s mistake, and the very magnitude of the resulting chaos, are what saved it from bearing the brunt of its error.
While this case is remarkable in that it highlights an extreme example of what can occur as a result of sloppy lawyering in electronic discovery, it also warns attorneys that in other circumstances, courts may not be as forgiving. For some firms, even a fraction of the number of documents and costs involved this case would be difficult to bear and depending on the level of attorney “carelessness” and “inattention” involved, courts may still leave law firms and their unhappy clients responsible for the results of such negligence.
So how can attorneys avoid what occurred here? The court, in its opinion, provides guidance on formulating reasonable search terms when engaged in electronic discovery. When creating requests, attorneys “should consider a variety of factors, including:”
(1) the scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians;
(2) any date restrictions imposed on the search;
(3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents;
(4) whether operators such as “and”, “not”, or “near” are used to restrict the universe of possible results; and
(5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.
These guidelines and others, combined with careful attention and diligence by an attorney engaged in electronic discovery, should be enough to avoid not only a 95 million page discovery result, but also the horror of having to present a client with a multi-million dollar discovery bill.
Lauren Cannataro received her B.A. cum laude in International Studies, with a concentration in Economics and Trade, from The College of New Jersey. She will receive her J.D. from Seton Hall University School of Law in 2012. After graduating, Lauren will clerk for a judge in the Superior Court of New Jersey.
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