Search Terms Must Be Arguably Relevant to Stand Judicial Review—Potential Narrowing FRCP 26(b)

Search Terms Must Be Arguably Relevant to Stand Judicial Review—Potential Narrowing FRCP 26(b)

Federal Rules of Evidence Rule 401 defines something as relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Federal Rules of Civil Procedure  Rule 26(b)(1)-Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. In addition, the plaintiff bears the burden of convincing the court that search terms for electronically stored information (ESI) is relevant. In a motion to compel, a court will weigh the relevancy of a plaintiff’s request and justification versus a defendant’s previously produced documents.

This is the underlying law that is challenged in McNabb v. City of Overland Park. In McNabb v. City of Overland Park, a police officer alleges claims of sexual harassment and inappropriate workplace behavior and requests electronic mail from a group of individuals from within the police department. The plaintiff during the discovery period submitted a list of 35 search terms to the defendant for document request to support his claim. In response, the defendant, upon discussion with the plaintiff’s counsel, produced over 36,000 documents which were broken up into five categories of search. The defendant produced the following document categories: (1) all emails sent or received by plaintiff; (2) all emails sent or received by Officer Bever, (3) all emails mentioning plaintiff, (4) all emails mentioning Officer Bever, and (5) any emails containing both “McNabb” and “Bever.”

In filing the motion to compel discovery, the plaintiff seeks to require the defendant to search the electronic files of 14 custodians for their 35 specific search words. However, the judge held that the plaintiff must present something more than speculation that a search of those 14 custodians’ emails with proposed words would be likely to reveal additional information not included in the initial discovery documents.

Specifically, the court noted, the search as required by the plaintiffs was overly broad and it was unlikely that it “could conceivably encompass some information that may arguably be relevant to this litigation…” The court also took note to a significant number of the search terms that were not sexually charged although the plaintiff’s claim in the litigation was sexual harassment. In addition, the court found that the plaintiff included a numerous amount of duplicative and unnecessary search terms (“bullied” and “bully;” “defamation” and “defame;” “discriminate” and “discrimination;” “harass” and “harassment;” “kissed,” “kisses,” and “kissing;” “retaliate” and “retaliation;” and “sex” and “sexual”). In response, the defendant claimed that this measure was to ensure that the discovery search was thorough, but the court held that this measure was a prime example of the overbroad and excessive nature of the search.

Therefore, in order for discovery searches to be deemed proper they must be arguably relevant for what they request. Anything that is overbroad will be deemed excessive if the defendant was willing to participate and contribute something toward your discovery goal. The holding in this case attempts to scale back the overbroad reach of FRCP 26(b) and begins to narrow the focus of ESI discovery requests. This is a matter that must be carefully watched because courts could be leaning towards no longer allowing fishing expeditions into Metadata for ESI.

Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey, at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law.


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