Do I Have to Agree to E-Discovery Search Terms?

Use of e-discovery search terms to find documents is a pretty basic and commonly accepted concept in electronic discovery. Since at least the 1990s, legal research courses have been teaching lawyers how to use keyword searches and Boolean searches to find relevant material.

So, you would think, using search term queries during discovery to identify relevant documents would not be that controversial in the 2020s. But . . . you would be wrong.

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Courts May Expect Litigants to Agree on Search Terms

In Pyle v. Selective Insurance Company of America, Case No. 2:16-cv-335 (W.D. Pa. Sept. 30, 2016), a former Selective employee sued the company and, during discovery, requested emails relating to disability benefit payments and her termination. Selective gathered some responsive documents, but also asked Pyle’s attorney to provide search terms to query email archives. When Pyle’s attorney refused to provide search terms, Selective filed a motion to compel Pyle’s attorneys to cooperate and provide keywords to identify responsive ESI.

For their part, Pyle’s attorneys argued that Selective cited no authority compelling them to cooperate and provide keyword search terms nor had Selective identified any burden hindering its ability to comply with the document requests.

Unfortunately for Pyle, the court did not see it the same way:

[Pyle’s] argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, [Selective’s] request is entirely consistent with both the letter and spirit of the Federal Rules of Civil Procedure regarding the discovery of electronically stored information and this Court’s Local Rules. It is well settled by now that “electronic discovery should be a party-driven process.” Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109 (E.D. Pa. 2010) (internal citation omitted). The Federal Rules expressly require counsel to meet and confer on “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]” Fed. R. Civ. P. 26(f)(3)(C). “Among the items about which the court expects counsel to `reach practical agreement’ without the court having to micro-manage e-discovery are `search terms, date ranges, key players and the like.'” Romero, 271 F.R.D. at 109.

But, Then Again, Courts May NOT Require Agreement on Search Terms

Not all courts are of the view that parties must agree to E-Discovery search techniques. In Livingston v. Chicago, No. 16 CV 10156 (N.D. Ill. Sept. 3, 2020), the court concluded that “a responding party it is best situated to decide how to search for and produce” information responsive to discovery requests.

In that dispute, the plaintiffs argued that an ESI protocol agreed upon by the parties required the use of agreed upon search terms. For its part, the defendant City of Chicago contended that the protocol did no so require and that it should be permitted to use technology assisted review to identify information responsive to discovery.

The court agreed with the latter. Citing Sedona Principle 6 that “responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information”, the court approved the use of TAR and said the City was not required to use agreed search terms to collect data for review and production.

Agreeing on Search Terms Does Not Mean You Get Everything

What happens when parties agree to e-discovery search terms, but cannot agree on what the agreement really means?

To answer that question, we turn to Flowrider Surf, Ltd. v. Pacific Surf Designs, Inc., Case No. 15-cv-1879-BEN (BLM) (S.D. Cal. Nov. 3, 2016). In that case, the parties agreed to a list of keywords and, because they had, Pacific Surf argued that it had the right to all documents containing a search term “hit”.

Pacific Surf argued it had a right to every document with a search term because:

• Each search term was narrowly-tailored to specific issues in the case and therefore any document with a search term was preemptively relevant and responsive;
• Culling based on relevance was not contemplated by the ESI Order entered in the case; and
• Flowrider waived any argument that search terms were too broad because they agreed to the search terms.

Again, the court saw it differently and noted that despite efforts to narrowly tailor the search terms, many irrelevant documents also contained search terms. The court also noted that just because parties agreed on search terms did not constitute acquiescence to produce all documents containing keywords.

Specifically, the court noted that Federal Rule of Civil Procedure 26 limits discovery to unprivileged matters relevant to a party’s claim or defense and that is proportional to the needs of the case. The court also noted that the ESI Order stated it was intended to streamline ESI production and to “promote a `just, speedy, and inexpensive determination'” of the action and permitted email production requests targeted to specific issues rather than general discovery of a product or business. As a result, Flowrider was required only to produce relevant documents yielded during the search.

The takeaway?

Judges expect attorneys to cooperate during e-discovery and agree to search terms.

But, that doesn’t mean you get everything.

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