In Helmert, et al. v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010), an employment law case in the Eastern District of Arkansas, the plaintiffs brought a motion to compel the defendant, Butterball, to conduct a meaningful search of its electronically stored information (ESI). During discovery negotiations, which included multiple meet and confers, the plaintiffs provided the defendant with 70 search terms to identify potentially responsive documents from approximately 40 Butterball employees. The plaintiffs' search terms included proximity searches, which search for terms within the same sentence or within a certain number of words of another term.

Butterball argued that conducting proximity searches was unduly burdensome because it was impossible to run this type of search within its email environment. The court agreed, noting that the plaintiffs did not offer evidence that Butterball was capable of performing proximity searches or alternative methods for conducting the searches.

Though at first glance, the ruling inured to Butterball's benefit, both parties may have lost this argument. Historically, email systems - like many other information systems - were not designed with sophisticated search engines. However, there are many methods for collecting and searching email and other ESI, including early case assessment tools designed specifically for this purpose. A common method for collecting and searching email involves (1) copying an employee's mailbox or specifically identified folders from a company's servers in a legally defensible manner that preserves metadata and (2) importing the emails and document folders into an application capable of running complex searches and filtering by date or other criteria.

Because the plaintiffs failed to challenge Butterball's search methodology or offer alternative search methods, the court denied both parties the benefits of proximity searches. Eliminating proximity searches will generally increase the number of documents identified. Butterball, therefore, will be required to spend additional time and money reviewing the larger population of documents for responsiveness and privilege. Likewise, the plaintiffs will be required to sift through an even greater amount of documents that contain information related to the broad keyword search but that do not pertain to the litigation at hand.

The fact that neither party recognized the potential downside to a broad keyword search or offered an alternative search methodology appears to demonstrate a lack of knowledge regarding technical issues related to e-discovery. It also reinforces the need for businesses and attorneys unfamiliar with ESI to consult with ediscovery professionals when issues such as proximity searches arise during litigation.