Selecting Search Terms

Selecting Search Terms is Counsels’ Job, Not the Court’s, Says Judge Cole: eDiscovery Case Law

Ah, just when I needed a topic for this morning, Judge Peck suggests this case that’s only five days old! In Deal Genius, LLC v. 02 Cool, LLC, No. 21 C 2046 (N.D. Ill. Mar. 24, 2022), Illinois Magistrate Judge Jeffrey Cole denied the defendant’s motion to compel, stated the attorneys in the case “have not whittled their dispute down far enough for meaningful court intervention” and noted that selecting search terms that might assist in locating pertinent documents “is counsels’ job, not the court’s”.

Case Discussion

In this patent dispute case involving plastic, battery-operated fans made by both parties, Judge Cole represented the discovery dispute between the parties accordingly:

“Just a few weeks after counsel said that they ‘do not propose deviating from the schedule Ordered by this Court’…, this case took a very different course. As of November 5, 2021, the parties could not even agree whether plaintiff’s initial round of production was to have included emails – despite their ubiquity and importance in modern business…Two weeks later, the parties sought – and received – a lengthy four-month extension to the discovery schedule they did ‘not propose deviating from.’…The new deadline was June 23, 2022.”

Continuing, Judge Cole stated: “Three months later, at the first status hearing on February 14, 2022, six months into discovery, the parties had made no progress on email discovery…, even though it cannot be denied that in the world in which we live emails of a party’s employees may be the most compelling form of evidence.”

Yet, as Judge Cole observed: “Rather than take the opportunity of settling their email dispute at or before the hearing, the parties chose to file briefs on the matter. That the dispute was far better suited to a hearing is illuminated by the parties’ filings. Plaintiff’s counsel spent two-thirds of its brief complaining about defendant’s counsel’s performance in the parties’ Rule 37.2 conference and the pointless exchanges of angry emails, which, unfortunately in all too many cases, have come to typify the otiose exchanges between adversaries…Defendant’s counsel spent half its brief complaining about plaintiff’s counsel’s performance at the same Rule 37.2 conferences and the same exchanges of angry emails…The attorneys even disagreed over what happened between them at certain points in their months-long squabble. It is the attorney version of the children’s taunt, ‘I know you are but what am I?’ Unfortunately, it is all too common – and unnecessary…And seems to be even more common in discovery disputes like this one. As such, a tedious summary of counsels’ competing versions of what occurred is unnecessary – and unhelpful.”

Judge’s Ruling

In addressing the dispute, Judge Cole stated: “In any event, after several months, counsel ought to have been able to come to the court with a dispute that had been honed to a disagreement over a far more manageable number of emails. After all, there is nothing unique or special about the emails involved here. But, it is not until its reply brief that defendant brings up possible solutions to significantly reduce the number of documents…That, of course, is obviously too late… All that being said, plaintiff should make no mistake. It is going to have to perform searches that it would rather not make and to sift through large numbers of emails – a task that has become an accepted common-place in modern litigation. Plaintiff, after all, filed this lawsuit. It thought its necklace fans important enough to go through the significant toil and expense of federal litigation… Discovery is almost always costly and difficult; it is, by its very nature, burdensome and often intrusive. But that does not make discovery improper. It only becomes so when it is unduly burdensome.”

Continuing, Judge Cole stated: “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.” Noting that selecting search terms that might assist in locating pertinent documents “is counsels’ job, not the court’s”, Judge Cole also stated in a footnote: “The parties should be aware that, when the numbers of documents to be reviewed by a court in discovery disputes move into the hundreds, courts in this Circuit find it appropriate and far more efficient to engage a special master under Fed.R.Civ.P. 53(a)(1)(C)… given the issues at stake in this case, it is likely more fair to have the parties bear the costs of their discovery dispute, rather than as a tax-payer subsidized matter… Review of thousands or even hundreds of documents would monopolize the court’s attentions and be patently unfair to the other litigants waiting in the queue, most of whom have honed their discovery disputes through the meet-and-confer process to far more manageable levels long before discovery closed.”

So, what do you think? When do you think a Court should assist with selecting search terms, if ever? Or should they always enlist a special master to assist with selecting search terms?  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, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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