When may the court compel a party to use a particular method to search for relevant ESI? When the opposing party can show that the responding party’s method would not produce a sufficient result.

Which party controls the initial approach to searching for ESI? The producing party, as long its method produces sufficient results that are reasonable and proportional.

Author: RHL

 

Citation: In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016).

 

Employee/Personnel/Employer implicated: Plaintiff’s Counsel

 

eLesson Learned: Plaintiff’s counsel should have shown the judge how defendant’s use of keyword search for electronically stored information (ESI) would produce insufficient results instead of pointing out the advantages and savings from using technology assisted review (TAR) or predictive coding.

 

Tweet This: To compel your opponent to use your preferred method of search for ESI, you must convince the judge that the opponent’s chosen method will not produce sufficient results, and that your method will.
 

 

In an ongoing lawsuit against Pfizer, In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016), the courtdenied plaintiffs’motion to compel defendant to use technology assisted review (TAR) or predictive coding to search for electronically stored information (ESI) instead of Pfizer’s proposed keyword search method.

 

The court pointed out that “the responding party is the one best situated to decide how to search for and produce ESI responsive to discovery requests.” Id., at *51. The court further noted that plaintiffs did not cite any cases that required the responding party to use the “best” method of search, and as long as the responding party is able to produce results that are reasonable and proportionate, the court should not get involved. 

 

The court heavily based its holding on a recent decision in Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390, (S.D.N.Y. Aug. 1, 2016)), where the court agreed that TAR was a better approach to search for ESI, but saw no basis in law to require defendant to use it. Like the court in Hyles, the court here refused to strong-arm the defendant into using TAR or predictive coding to search for ESI when plaintiffs did not demonstrate that the use of keyword search would produce insufficient result. The court noted that even if keyword search result would be less complete than TAR-based, the standard is not perfection, but whether the results produced will be reasonable and proportional. The court held that as long as the discovery responses produced are sufficient, the court should not force the responding party to use a particular approach to search for ESI. 

 

RHL is a law student at Seton Hall University School of Law

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