Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II)

In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), defendant, Alliance, agreed to search 159 terms.  However, when it produced the text messages “hitting” those terms, plaintiff found the texts to be cryptic and asked for more texts to provide context.  Alliance said – in my words – we performed our agreement and you got what you asked for.[1]

The Advanced Magnesium Alloys court wrote:

Using negotiated search terms as a way of finding documents that are responsive to broad document requests among a vast number of electronic documents is, in fact, an agreement that those searches will fulfill the producing party’s obligation with regard to those document requests. [emphasis added].

However, the court did not stop there: “As Plaintiff correctly points out, … the [keyword] process is far from perfect.”  Instead of stopping, the court wrote that electronic discovery requires cooperation.

Part of that cooperation includes agreeing to search additional keywords when the need to do so becomes apparent—when, for example, it is learned that Dery is sometimes referred to as “Mr. X” in relevant documents. Part of that cooperation also includes agreeing to search for and produce certain relevant and responsive documents that, for whatever reason, would not be revealed by keyword searches. [emphasis added].

This holding seems to be the emerging trend. See Sanctions Denied, But Be Careful What You Agree To.  “While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.” Id., quoting I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011)(unpublished).

A similar result was discussed in What is a “Document?”

In Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D. N.J. Jun. 16, 2021), the question arose in the context of text messages.  There, the producing party wanted to produce only the narrow text message that “hit” on a specific search term.  It proposed a bubble-by-bubble definition of “document.”

Unsurprisingly, the requesting party suggested a different definition.  It argued that the “document” included surrounding messages that provided the context.  The Special Master agreed and directed production of the contextual texts.

In my words, the context was part of the “document.”  Information that preceded and followed the bubble that the keyword “hit” was part of the requested “document” and it had to be produced with the “hit.”

See also What is a Document? (Part III) – E-Discovery LLC (ediscoveryllc.com).

The Advanced Magnesium Alloys court was clearly correct in holding that an agreement to search for specified terms is a binding agreement.  However, unlike older decisions, such as In Re Fannie Mae, 552 F.3d 814 (Fed. Cir. 2009), discussed in Sanctions Denied, But Be Careful What You Agree To, an agreement should not displace concepts of cooperation and proportionality.

Courts should do what was done in Advanced Magnesium Alloys, I-Med Pharma, and Canter v. Zeigler, 2022 WL 6754646 (D. Md. Oct. 10, 2022)(Sullivan, J.), and provide an escape hatch where warranted.[2]

For additional information on the duty to cooperate, see M. Berman and the Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery,” Chapter 14, in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020). For additional information on proportionality, see Chapters 9 and 10.

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[1] Plaintiff, Advanced Magnesium, alleged that defendant Dery conspired with defendant Alliance by using Advanced Magnesium’s trade secrets to “jump start” Alliance’s entry into the magnesium recycling market.  It was alleged that Dery exchanged text messages to recruit an investor in Alliance.

[2] The Advanced Magnesium Alloys court addressed a number of other issues that are not covered in this blog.