Is a Plaintiff Required to Provide Search Terms When Making A ESI Request?

A Tale of Two Motions to Compel: The Need to Read the Rules

Author: Brendan Johnson

 

Case Citation: Pyle v. Selective Ins. Co. of Am., No. 2:16-cv-335, 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sep. 30, 2016). See attached PDF.

 

Employer/Employee Implicated: No Employees implicated this case deals with Plaintiff Attorney’s duty to provide HIPPA authorizations and search terms.

 

eLesson Learned: Electronic Discovery should be a party driven process, this means that attorneys must meet and confer and attempt to reach practical agreements where possible.

 

Tweet This: Don’t be so formalistic — FRCP for eDiscovery are to be read broadly!

 

 

This case is broken down into two motions and an order from the court. In the first motion, Plaintiff disclosed three doctors as individuals who are likely to have discoverable information on July 7, 2016. On September 6th Defense counsel severed Plaintiff with a request for production of document seeking medical records. Defendant brought this motion before the court on September 30th request to the court compel Plaintiff to produce documents. This motion was denied because F.C.R.P gives 30 days to respond to a request to produce. Since it had not yet been 30 days the motion was premature.

The second and more important motion dealt with the Plaintiff refusing to give search terms to aid the Defendant in their eDiscovery. Plaintiff made a request for the production of “all emails, correspondence, memorandum, and/or other documents” from several of Defendants employees. Defendant responded by giving some documents and requesting that plaintiff give some agreeable search terms to aid in the eDiscovery. Plaintiff refused to give any search terms. Consequently, Defendant requested a second time and this motion was brought before the court to compel Plaintiff to provide search terms.

Plaintiff claimed that there was no law or support for Defendant’s contention and the Court completely disagreed. The Court found that Defendant’s request was completely within the scope of discovery by the letter and the spirit of the Federal Rules of Civil Procedure. The Court stated, “electronic discovery should be a party-driven process.” Parties must meet and confer to and reach practical agreements without the court having to micromanage “search terms, date ranges, key players and the like.”  Trusz v. UBS Realty Inv’rs LLC, No. 3:09 CV 268 (JBA), 2010 U.S. Dist. LEXIS 92603 (D. Conn. Sep. 7, 2010). The Court granted the motion to compel and ordered that Plaintiff meet with Defendant and confer to establish agreeable search terms. The Court did not set a time limit for this meeting, but stated that it was in the best interest of both parties to resolve the issue as quickly as possible.

 

Brendan Johnson, a Seton Hall University of Law student Class of 2017, focuses his studies in the area of corporate litigation. Symposium Editor of the Legislative Journal. Will begin Clerking for the Honorable Judge Bariso August 2017. 

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