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Responsive ESI production not necessarily relevant
RICHARD WEINER
Technology for Lawyers
Published: September 16, 2016
Picture a request for ESI production that includes search parameters. What if the recipient of the discovery request ran the search and came up with more documents that needed in the case? Then what?
That was the case in the great state of Texas recently, in Bancpass, Inc. v. Highway Toll Admin. LLC, No. A-14-CV-1062-SS, 2016 U.S. Dist. LEXIS 96978, (W.D. Tex. July 26, 2016). The case involved a mechanism that reported turnpike tolls to a car rental company.
The requesting party gave certain, specific search parameters to the producing party, that looked like old Boolean requests, including “Smartphone/50 toll!” (which means the word “smartphone” within 50 words of the word “toll”, for those of you who don’t remember Boolean search), along with requests like “smartphone/50 threat,” “Phone/1- app!”, and so forth.
The search was further limited to non-privileged hits.
Well those parameters produced about 20,000 non-responsive, non-privileged hits. So the producing party went to work eliminating prior produced documents, duplicates, responsiveness, privilege, etc., and eventually whittled the production down to 34 documents.
The requesting party wasn’t thrilled with that response and moved the court to grant their initial request in toto, saying that an email chain discussing the production specified the larger response.
The judge chose not to do so, instead holding that relevance was the point of the discovery, not a strict adherence to the technical side of the request (more or less).
The judge made the point that an email exchange on the topic of deciding the parameters of an ESI request is “not a contract,” and so the specific mechanics of the request are not relevant to the actual documents that the requesting party is entitled to.
The court also wrote that it did review the documents, and found no reason to believe that any of the discovery response was done in bad faith.
An analysis of this case by the great Josh Gilliland on his Bow Tie Blog basically warns that search requests should be limited to the greatest extent possible, not expanded to infinity, to produce relevant documents.
“Search terms that connect a generic word such as ‘smartphone’ to being within 50 of another common word like ‘threat’ is begging for false positive results,” said Gilliland. “Just because two words are near each other in a paragraph does not make them relevant.”
So tighten that up!