A Failure to Produce ESI Can’t Easily Be Blamed on the Requesting Party

In any case, responding to discovery requests can be highly time-consuming. And simply searching for specific keywords as a way of response can be the least efficient way of going about it. Responding to discovery requests requires not only an understanding of the request for production, but also a familiarity with the terms of art within a dataset and a strategy for constructing searches.

The key issue for responding to discovery requests is whether a producing party has made reasonable and good faith efforts to respond to the request for production. Creating searches based on individual requests for production—as opposed to searching based on keywords alone—is one way to focus document review to find relevant information.

Complying with Federal Rule of Civil Procedure Rule 34

A Plaintiff in an employment lawsuit requested all information or communications between employees where the Plaintiff was referenced from January 2011 to “present.” The Plaintiff claimed that this information was relevant to show that the Plaintiff was terminated in retaliation for raising issues of the Defendant’s billing practices, and not for job performance.1

The Defendants first objected to the scope of the request covering until the “present,” which the Court later narrowed to only up to a specific date. The Defendants also claimed that, absent a protocol or search terms from the Plaintiff, they were unable to respond to the discovery request.

There is nothing in the Federal Rules of Civil Procedure that relieves a party from responding to discovery requests because a requesting party does not provide search terms. Magistrate Judge Mitch Dembin took the Defendants to task for this argument, calling their position “frivolous.” In his opinion, discovery being in electronic form does not relieve a party from “preserving, collecting, analyzing and producing non-privileged, relevant information.”

The dispute in the case was not complicated: was the Plaintiff fired for job performance or in retaliation? The Defendants were ordered to respond to this discovery request that was limited to the time period where either the Plaintiff’s job performance or the Defendant’s billing practices were discussed.

Judge Dembin knows how to lay down the law with Federal Rule of Civil Procedure Rule 34. The Court expressed “concern” that the Defendants were withholding responsive information, which would violate the requirement to state any information that was withheld based on privilege. The Court ended its analysis with the ominous tone that while no sanctions would currently be imposed, the attorneys needed to “refresh” themselves on Rule 34.  

Responding to Discovery Requests for ESI

There are many attorneys who believe they cannot respond to discovery requests without “search terms” from the requesting party. This is a false premise that can cause delay. While discussing date ranges, terms of art, individuals, and methods of communications are a good idea at a Rule 26(f) conference, a request for production can contain what is necessary to respond to discovery requests.

In the above case, the discovery request was for communications sent between January 1, 2011 to November 12, 2012 and which pertained to the Plaintiff’s job performance, or the Plaintiff’s complaints about the Defendant’s billing practices. Searches can be constructed from the request for production to identify communications for review.

The first search for responsive information is to create a search with the scope of January 1, 2011 to November 12, 2012. The broadest search would be for all email messages containing the Plaintiff’s name. There are more sophisticated searches, but this can be a starting point to familiarize the review team with the data for relevant versus irrelevant information.

A more strategic option is to either search through all email or for messages between specific individuals, such as the Plaintiff’s managers, for responsive ESI. To uncover possible search terms, attorneys should discuss the terms of art used in discussing the Plaintiff’s job performance with those who terminated the Plaintiff. The next criteria for the search is to add content searches for “performance,” “complaint,” “write-up,” or other terms identified by the Defendant’s employees who discussed the Plaintiff.

The above searches can also be within a defined number of characters away from the Plaintiff’s name.

Searches such as the above would need to be validated with review if the hits are actually responsive to the discovery requests.

The second half of the search is for communications from the Plaintiff with complaints about the Defendant’s billing practices. This search can be all email from the Plaintiff, within the date range, containing terms such as “complaint,” “billing,” “concern,” or other terms devised after speaking with the key players.

In responding to discovery requests, a producing party must make reasonable and good faith efforts to respond to the request for production. Many requests for production can be used to create searches for responsive information. It is also wise to discuss the requests with the client, as they can also provide guidance or what to search for. While searching for ESI should be discussed at the Rule 26(f) conference, the lack of agreement on search terms does not give a responding party the license to withhold responsive data.

1Uehling v. Millennium Labs., No. 16cv2812-L-MDD, 2017 U.S. Dist. LEXIS 130066, at *7-9 (S.D. Cal. Aug. 15, 2017).