Court Refuses to Select Search Terms for Parties

In Deal Genius, LLC v. O2 Cool, LLC, 2022 WL 874690, at *3 (N.D. Ill. Mar. 24, 2022), the court was faced with two parties that failed to cooperate concerning discovery of ESI, including design of search terms.  The court wrote:

It should go without saying that months of arguing over five search terms, and then involving a court in that dispute in any event, would be out of proportion to the needs of many cases. But there can be no dispute that what has gone on thus far in this particular case is out of proportion with the needs of this particular case and the commands of good sense.  The attorneys in this case are, essentially, at square one. They have not whittled their dispute down far enough for meaningful court intervention. The court cannot – and ought not – take over the selection of search terms and conjunctive terms that might assist in locating pertinent documents. That is counsels’ job, not the court’s. Indeed, courts are prohibited in all contexts from doing the work of counsel. Requiring the court to perform what is obviously the work of counsel would be patently unfair. It would require the court to weigh in on one side to the possible disadvantage of the other and would be inconsistent with the adversary system, itself. Indeed, the Supreme Court recently emphasized, “[i]n our adversarial system of adjudication we follow the principle of party presentation.” United States v. Sineneng-Smith, ––– U.S. ––––, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020). That principle assigns to the court the role of “neutral arbiter of matters the parties present.” Id. Thus, “as a general rule, [o]ur system is designed around the premise that [parties represented by competent counsel] know what is best for them and are responsible for advancing the facts and arguments entitling them to relief.’” Id. at 1579. (Brackets in original). [emphasis added].

It concluded:

Counsel would do well to keep before them as a living faith Judge Moran’s common sensical but profound insight. “The discovery rules are not a ticket [Judge Moran has observed] to an unlimited never-ending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts-and no more.” Vakharia v. Swedish Covenant Hosp., 1994 WL 75055, at *2 (N.D. Ill. 1994). Counsel have more work to do; to accomplish what needs to be done, they need to take more reasonable positions and take them quickly and efficiently. If experience is any guide, June 23rd will come much more quickly than counsel might imagine. [emphasis added].

The case involved a dispute of roughly $90,000.  Id. at *2.  “Proportionality is a vital limitation on pretrial discovery, which courts have rightly called ‘a runaway train’….”  Id.  Proportionality is “not self-defining; it requires a common sense….:  Id.[1]

Other courts have found themselves in “the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties….”  William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009)(emphasis added).  The Gross court wrote that it “is no keyword expert,” directed the search terms to be used, and wrote:

The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.  [emphasis added].

The court in Gross, paralleling the court in Deal Genius, wrote that: “Of course, the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Cooperation Proclamation (available at www.TheSedonaConference.org).”

Thanks to Kelly Twigger of eDiscovery Assistant for pointing the Deal Genius case out.  #CaseoftheWeek Episode 61: Planning for Search Terms and Issues of Proportionality | eDiscovery Assistant (Apr. 8, 2022).

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[1] The court explained: “This case is about little, plastic, battery-operated fans that dangle around one’s neck on a lanyard. The parties each make them. The lanyard on the defendant’s little plastic fan is attached to one corner of the fan so the fan hangs on an angle. That’s part of the defendant’s patent. The lanyard on the plaintiff’s little plastic fan is attached to both sides of the fan so the fan hangs straight…. The defendant thinks the plaintiff’s plastic necklace fan is infringing its patent; the plaintiff disagrees.”