It has become commonplace for parties engaged in electronic discovery to discuss and agree upon “keyword” searches in an effort to limit the overall scope of discovery. A recent decision in the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Civ. No. 03-3677 (DRD), (D.N.J. 2011) , demonstrates the pitfalls that arise when the parties too eagerly agree to conduct a search for electronically stored information using an overly broad set of keywords. The case also demonstrates a court’s willingness to engage in proportionality analysis to cabin broad discovery.
Biomatrix involved a dispute over two medical distribution contracts, with the plaintiff alleging that the defendant breached certain exclusivity provisions. During the course of the parties meet and confer obligations, the plaintiff’s counsel agreed to allow the defendant’s expert to conduct a keyword search of more than 50 terms on the plaintiff’s computer network, servers, and related storage devices. Counsel should have known better than to agree to such keywords -- without limits as to time, custodian, or “active file” status -- that would almost certainly result in millions of hits. In this case, the agreed upon search yielded more than 64 million hits, approximating 95 million pages of data. Despite agreeing to conduct such a broad search as part of a previous court order, the plaintiff was forced to seek court approval to have the prior discovery order modified to further narrow the discovery inquiry. Not surprisingly, the defendants sought to hold the plaintiff to their initial deal, and also sought costs associated with the search.
Magistrate Judge Shipp found that (1) “good cause” existed for modification because the plaintiff’s privilege review of the documents would be unduly burdensome, (2) the defendants did not demonstrate the relevancy of the documents, and (3) the parties’ overbroad search terms were unlikely to yield relevant, admissible information. He thus amended the pre-existing discovery order, but held that the defendants could seek reimbursement of the costs associated with extracting and searching the data on the plaintiff’s computer system.
District Judge Dickinson R. Debevoise ultimately affirmed Magistrate Judge Michael Shipp’s modification of the existing discovery order -- finding not only “good cause” to do so, but even “manifest injustice” if the order was not modified. See Waldorf v. Shuta, 142 F.3d 601, 1998 U.S. App. (3d Cir. 1998). Judge Debevoise also took the opportunity to provide guidance for parties to keep in mind when discussing and proposing search terms. In particular, the Court reasoned that the parties should have been more diligent before agreeing to the broad search terms, and listed the following factors for parties to consider when evaluating proposed search terms:
- the scope of the documents searched and whether the search is restricted to specific computers, file systems, or document custodians;
- any date restrictions imposed on the search;
- whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents;
- whether operators such as ‘and,’ ‘not,’ or ‘near’ are used to restrict the universe of possible results; and
- whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.
As a practical matter, litigants should pay attention to Judge Debevoise’s guideposts before agreeing to a broad set of search terms. An eagerness to agree up front to a discovery plan and avoid a fight may only delay the inevitable if the search terms picked are so broad as to result in an unduly burdensome stack of material to review. Moreover, courts have become more willing to examine “what’s at stake” in a case before ordering broad-based discovery; and seeking a more limited discovery order early in the case can avoid unnecessary expense later on.
Jennifer Marino Thibodaux is an Associate on the Gibbons E-Discovery Task Force.