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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