Shark week, er, eDiscovery Case Week, continues!  In Lyman v. Ford Motor Co., No. 21-10024 (E.D. Mich. June 28, 2023), Michigan Magistrate Judge Elizabeth A. Stafford rejected defendant Ford Motor Company’s reliance on self-collection and “reject[ed] any argument that a party’s search protocol is privileged”, granting plaintiffs’ request for Ford to undertake electronic searches of all records associated with four custodians and ordering the parties to “have transparent and cooperative discussions about the search terms and search methodology”.

Case Background

Plaintiffs moved to compel electronic searches of Defendant Ford Motor Company’s records associated with four custodians. The motion was referred to Judge Stafford for hearing and determination under 28 U.S.C. § 636(b)(1)(A). The hearing was conducted on June 27, 2023.

Judge’s Ruling

Judge Stafford’s ruling was provided at the top of order, after which she stated: “The Court detailed its reasoning during the hearing. To summarize, Ford provided a vague description of its search methodology for most of the custodians, and it claimed privilege for testimony that plaintiffs said proved that Ford’s methodology was too custodian-driven…Although there is conflicting precedent, this Court announces in this order that it agrees with opinions emphasizing that ‘[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.’”

Continuing, she stated: “And this Court has already held that “an attorney may not simply rely on custodian self-collection of ESI. Instead, counsel must test the accuracy of the client’s response to document requests to ensure that all appropriate sources of data have been searched and that responsive ESI has been collected—and eventually reviewed and produced.’”

Judge Stafford also stated: “The Court also rejects any argument that a party’s search protocol is privileged…As well stated in Vasoli:

It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions.”

Judge Stafford concluded her ruling by stating: “Finally, despite Ford’s claim that it made a full production of responsive documents, the limited production from key custodians ‘permits a reasonable deduction that other documents may exist.’” So, she rejected defendant Ford Motor Company’s reliance on self-collection and “reject[ed] any argument that a party’s search protocol is privileged”, granting plaintiffs’ request for Ford to undertake electronic searches of all records associated with four custodians and ordering the parties to “have transparent and cooperative discussions about the search terms and search methodology”.

So, what do you think? Are you surprised that such a major corporation had such a reliance on self-collection? 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.

BTW, I’m on my first real vacation in three years (seriously! – this post was pre-scheduled!) so I may be slow to respond to comments here and on social media. 🙂

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