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E-discovery, privacy, proportionality, federal court, and on….
RICHARD WEINER
Technology for Lawyers
Published: October 10, 2014
A Nebraska federal court has admonished a federal prosecutor for overreaching in an e-discovery case, bringing up issues of privacy and proportionality that look worth discussing.
The case is United States v. Univ. of Neb. at Kearney, a Fair Housing Act lawsuit.
The crux of the matter was the prosecution’s e-discovery request for “document* w/25 policy” (asking for any document on the defendant’s database in which the words “document”, or some variant of that word, and “policy” were within 25 words of each other).
Two problems here.
The first is that the search was unduly burdensome for three reasons. The second is that it could have also been an invasion of privacy.
Unduly burdensome:
Reason 1: “Searching for ESI is only one discovery tool,” said the court. “It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete.” That would be an admonishment for laziness.
Reason 2: Compared to the efforts that parties should undertake to complete non ESI discovery, the costs of the ESI requests were out of proportion—“proportionality” being the ESI version of a cost-benefit analysis. Specifically, the government’s search terms would have over 50,000 hits, which would have cost over $150,000 for the Defendants to retrieve, review, and produce the responsive ESI. This would have been on top of the $122,006 that had already spent for processing the Government’s requests for production.
Problem 2, invasion of privacy: the ESI requests would have produced documents that were not relevant to the parties—in fact, that would have produced documents that solely belonged to third parties who had nothing to do with this case. This was because the request would have produced every person with a disability. The defendant wanted that scope reduced to the 11,000 or so documents relevant to this case.
The defendant won on every point. Lesson? Keep discovery simple?
Thanks to the ever-wonderful Bow Tie blog for the tip. Subscribe if you want to keep up on the latest e-discovery cases.