eDiscovery Case Week continues! Should courts rule on search term disputes? Or should the shark today be wearing a halo? Hmmm… 😉
In McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020), Michigan Magistrate Judge R. Steven Whalen granted the plaintiff’s Second Motion to Compel Discovery in part and denied it in part, including his ruling to have the parties “share the cost of retaining an expert to assist them” in search term disputes.
Case Background
In this discrimination case related to the Americans With Disabilities Act (“ADA”), the plaintiff filed a motion to compel discovery regarding several specific discovery requests, detailed below in the Judge’s Ruling section below.
Judge’s Ruling
Kelly Balogh’s emails: While she was was an Administrative Assistant employed by Kohl’s, and was not a decision maker in Plaintiff’s termination, she “received a troubling text message in the middle of the night from Plaintiff wherein he requested information regarding Kohl’s suicide hotline”. Judge Whalen stated: “Ms. Balogh’s emails to decision makers regarding this incident would be relevant to the ‘regarded as’ element of Plaintiff’s ADA claim. Defendant appears to recognize this at least in part, stating that it searched David Ruffing and Jolene Christensen’s email accounts for calendar year 2017.” Noting that “a more complete search would have included Randy Meadows and Dallas Moon”, Judge Whalen ordered the defendant to “produce all off Ms. Balogh’s emails either to or from Ruffing, Christensen, Meadows, and Moon for calendar year 2017.”
Time Periods and Scope of ESI Searches: The parties agreed to an end date for the email accounts of several custodians (including the plaintiff), but disagreed as to the start dates – plaintiff wanted July 1, 2014, defendant wanted September 1, 2016. Judge Whalen stated: “Under the broad scope of discovery contemplated by Rule 26(b), Defendant’s date range is too narrow. Plaintiff’s leave of absence–which is related to his “regarded as” claim–was January 15, 2015. This is the appropriate start, and Defendant will therefore produce the requested emails of Christensen, Roszczewski, Ruffing, Meadows, Moon, Schrader, and Plaintiff starting on that date.” Judge Whalen also granted the plaintiff’s requested starting date for another custodian, but denied it for yet another one – both based on potential relevancy.
Search Terms: Judge Whalen noted “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.”
Interrogatory No. 25: The plaintiff sought a description of the defendant’s methodology for complying with his instructions of searching for and producing ESI. Judge Whalen stated: “This is, in effect, discovery about discovery, and as such is at least one level of relevance removed from the substantive issues in this case. In response, Defendant proposed that these technical matters be discussed in a meet-and-confer session. Because the attorneys for the parties will in fact meet again, with the assistance of an expert, to discuss search terms, I agree that would be the more appropriate and efficient forum to resolve this request. As such, the motion is denied as to Interrogatory No. 25.”
So, what do you think? Should courts rule on search term disputes without expert recommendation? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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“Should courts rule on search term disputes without expert recommendation?” Great question! If a judge were adequately instructed on the needs of the case in terms of search, the nature of the data under scrutiny and the capabilities and limitations of the search tools, then the judge–like the lawyers–would be positioned to make good decisions on search terms and techniques. Search is a science, but it’s not an unlearnable or unteachable one. Angels fear to tread because they enter a place of darkness. Bring a little light to the task–by transparency of process and appropriate testing of terms against representative data–and there is little to fear but fear itself.
When will lawyers understand that expertise in search is an essential skill for them today? We were trained to find the law. Why are we not trained to find the evidence? I’m making search and search tools the centerpiece of my new class at Tulane Law. Fear not, angels! We are going in!
I agree, Craig, and I think it’s great that you’re teaching a class at Tulane Law about searching tools and best practices! Having said that, I’m always amazed when a judge makes a ruling on specific search term disputes in a vacuum. Regardless how experienced you are, you can’t predict how well a search is scoped without testing it, yet I’ve seen several judges order specific search terms to resolve disputes without doing so. Even after thirty years of searching databases, I’m still often surprised at the results of some search terms that I think are going to scoped at a certain level, but turn out considerably differently because of the concentration (or lack thereof) of certain terms within the specific document collection.
I appreciated Judge Whalen’s approach in this ruling to instruct the parties to retain an expert if they couldn’t agree on scope. Assuming that expert gets involved in testing the proposed search terms to identify proper scope, that seems to me to be a much better way to resolve search term disputes.
I’m a big fan of turning questions on their side and seeing if they, in essence, still stand up. That is to say, I think the fight about keywords completely goes away if one constructs the null set out of everything that the keywords do not hit. This doesn’t mean that parties have to collect every document in the null set. Instead, if it were done as a random sample rather than as full collection, one could settle the keyword debate once and for all by letting the resulting statistics speak for themselves. This becomes even easier to manage as “in place” collection becomes more popular.
This changes the question from “are these keywords good enough” to “is the outcome good enough”. Which is actually what the question is supposed to be in the first place.
Great point, Dr. J! It’s not just about what your search or algorithm retrieves, it’s also about what it doesn’t retrieve. Testing should always include the null set, not just the result set.
There are, however, many different possibilities for what that null set is. Any thoughts on how we might come to a standard on defining that null set? If not, then any thoughts on how we might get parties to shift the battle from keyword searches to null set definitions?