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Not every search hit is relevant
RICHARD WEINER
Technology for Lawyers
Published: March 23, 2018
So—what do you do with 4.2 million search hits, all marked “attorney eyes only (AEO)?”
In the end, redo the search. And learn something about responsive ESI in the process.
This is the case of Longevity Int’l Corp. v. Smith (WL 6541106 (S.D. Cal. 2017)), a tale of a pretrial ESI agreement gone sideways.
The parties had agreed to a three-part ESI plan that boiled down to: each side would propose a list of search terms, which would be updated and modified as appropriate. The idea behind these kinds of agreements, of course, is to limit the number of documents that are produced to the relevant few. By, you know, finding the search terms in relevant documents. So that a party wouldn’t be inundated by irrelevant data like, say, when Ford sent 140 million documents or whatever it was to the plaintiffs in the Pinto case.
Instead, the plaintiff in this case just produced every document that was a hit to the search term, regardless of context or relevance—4.2 million of them. These included emails on cleaning out the refrigerator and tracking UPS packages.
The magistrate was less than amused, and if you try this one neat trick yourself, prepare to be put on blast by the trier.
Magistrate Jill Burkhardt said, basically, not to conflate responsiveness with relevance. Just because a record is a hit to a search term doesn’t necessarily mean that it is responsive to the discovery request. Search terms, while helpful, do not replace the actual requests for production. Search terms are just the starting point.
The Court found that the Plaintiff failed to meet their discovery obligations by their refusal to honor their discovery agreement on search terms, producing every search term hit, designating all hits as AEO, and not conducting any quality control measures on their production.
The magistrate actually proposed a couple of potential solutions for this situation: have another meeting to narrow down the discovery using the search term hits, or produce the relevant documents in raw form and let the defendant go over them. And, oh yeah, the plaintiff paid for all of this.
Lesson learned?
Thanks once again to “Bowtie” Josh Gilliland for the heads up and analysis of this case. The Bowtie is simply the best at this stuff.