In Juster Acquisition Co., LLC v. North Hudson Sewage Authority, D.N.J., No. 12-3427 (JLL), Magistrate Judge Michael Hammer denied the defendant’s motion for a protective order regarding the 67 keyword searches requested by the plaintiff and rejected the defendant’s request for the shifting of the costs of e-discovery. In denying the defendant’s application, the court found the defendant failed to demonstrate that the requests were overly broad or that it was unduly burdensome to locate the requested information.
This case involved a contractual dispute regarding the refinancing and recapitalization of North Hudson Sewage Authority’s (“NHSA”) debt. Juster Acquisition (“Juster”) alleges it was retained to assist in the project and performed a significant amount of work on behalf of NHSA. Conversely, NHSA denies it ever agreed to reimburse Juster for its alleged work. Juster sought $41 million in damages as a result of NHSA’s alleged wrongful conduct.
In discovery, Juster requested that NHSA conduct an electronic word search for 67 different keyword search terms. NHSA objected to this request and filed a motion for a protective order, claiming that the proposed terms were broad and vague, and that it already produced 8,000 pages of hard copy documents. In the alternative, NHSA requested that the court order Juster to pay for the cost of the searches.
On February 11, 2013, the Court denied NHSA’s motion for a protective order and rejected NHSA’s request for the shifting of e-discovery costs to Juster – the requesting party. Although the Court acknowledged that, at first blush, some of Juster’s proposed terms appeared broad, the Court found that NHSA failed to provide any objective information demonstrating that the terms were unreasonably cumulative or duplicative, or would have resulted in an undue burden. The Court also commented that cost-shifting is potentially appropriate only when inaccessible data is sought.
This decision is a good reminder of how important it is to present the Court with objective data in support of any motion to limit electronic discovery. For example, the Court in Juster was not impressed with conclusory statements that the proposed keywords were overly broad and vague. Rather, it would have been beneficial if the defendant provided the Court with a “hit” report showing the number of documents that were identified by each keyword. Similarly, it may be helpful to review a random sample of the keyword hits and then advise the court what percentage were relevant and what percentage were not relevant. By providing the Court with these types of metrics, it is much easier to argue, through objective evidence, that the benefit of conducting the electronic review does not outweigh the burden of conducting the review.
Finally, this decision also highlights the importance of cooperation. In denying the defendant’s motion for a protective order, the Court also noted that the defendant had failed to certify that it conferred with the plaintiff in a good faith effort to resolve the dispute.