By John Patzakis
One of the key cases involving the principles of proportionality under Federal Rule of Civil Procedure 26(b)(1), is McMaster v. Kohl’s Dep’t Stores, Inc., (E.D. Mich. July 24, (2020). McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable date ranges, file types and agreed upon keywords. Such a targeted, automated and proportional collection process can be applied to collect only the data that is responsive to this specific criteria.
However, the main ESI dispute in McMaster was that the attorneys could not agree on a list of search terms and sought a ruling of the courts to decide on which search terms should be used. As noted by the Magistrate Judge in McMaster, “Here is another case in which the Court is called upon to decide whose competing list of search terms is better suited for the search of large amounts of electronically stored information”, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 23–24 (D.D.C. 2008), which stated: “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” Judge Whalen stated: “I, for one, have no interest in going where angels fear to tread. Therefore, if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, then Plaintiff may renew his motion regarding the search terms and will provide the Court with an expert report substantiating his position.”
The parties had been engaged in a Rule 26(f) exercise, which requires the parties’ counsel to “meet and confer” in advance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI). A very good authority on the Rule 26(f) eDiscovery conference is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by then Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” “the use of key word searches, with an agreement on the words or terms to be searched;” “limitations on the time frame of ESI to be searched;” and “limitations on the fields or document types to be searched.”
Kelly Twigger, one of the best and brightest eDiscovery attorneys in the field in my opinion, commented in a recent webinar that eDiscovery collection capabilities that enable an iterative search and collection process in place would allow her to make more much informed decisions on keyword strategies. Twigger noted that software that provides keyword hits and other analytics on custodian laptops, fileservers and other network and cloud sources prior to collection, would enable her “to be able to define and agree upon the right search terms” with the requesting party. Twigger pointed out that while attorneys and judges rightfully avoid “where angels fear to tread” — agreeing on keywords without any visibility into the data — that concern can be alleviated when the right processes and technology are used.
And such technology is important, because optimizing the process of developing keyword searches is no easy task. The typical approach of blindly brainstorming a list of terms that may be relevant and running the search on a dataset to be reviewed results in a wide range of inefficiencies. Negotiations over proper usage of search terms may become onerous and contentious. Judges are often tasked with making determinations regarding the aptness of the methodology, and, as we see in McMaster, are very reluctant to do so. Thus, the use of outside expertise and leveraging indexing in place technology is beneficial in building an effective and comprehensive pre-collection search term strategy and enabling you to tread where angels fear to.