We love a good eDiscovery case here at IT-Lex, and here’s a recent one from New York’s Southern District: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc.,2012 U.S. Dist. LEXIS 167981 (S.D.N.Y., 2012). [Word Doc]. The facts of the case involve securities and mortgages, so we’ll skip those and go straight to the fun stuff. Each party had objections to the other’s discovery requests, and Judge James C. Francis IV went through each of these methodically. Firstly, he looked at the discovery sought by the plaintiffs, Assured Guaranty Municipal Corp. Assured asked the defendants – UBS Real Estate Securities, Inc. – for “documents that were generated more than a month after [certain] transactions closed” and UBS declined to produce these documents, “contending that such information is irrelevant because damages for breach of contract are determined as of the time of the breach.” UBS also argued that producing these documents would be “unduly burdensome.”
Judge Francis was not having either of these arguments. Firstly, he disagreed with UBS’ contention that there should be a chronological cut-off on relevancy:
Here, there is no basis for UBS’s imposition of a hard date limit on its production. Documents that post-date the transactions may nevertheless relate back to the state of affairs as it existed at the crucial time.
The claim of “undue burden” was also shot down. UBS had argued that ”even using a far more truncated time period resulted in a harvest of over 600,000 documents for only six of Assured’s proposed eight search strings.” In other words, UBS claimed, there were too many responsive documents, and it was a burden to produce them all. No dice. Judge Francis found three different flaws in this contention, the third of which is the most interesting:
First, it is to be expected that the vast majority of relevant documents will have been generated near the time that the transactions closed, which is the universe that UBS has already searched. Second, UBS has apparently not sampled documents from the post-transaction period in order to provide a realistic estimate of what might be unearthed. And, finally, the total number of documents “harvested” is not a particularly compelling statistic by itself, because it says nothing about the possible significance of the documents and may in fact reflect an inefficient search protocol.
In effect, just because there’s a lot of documents doesn’t mean it’s an undue burden; it could mean that you’re just bad at searching. Having lost both its arguments, Assured’s motion to compel was granted.
There were some issues resolved as to discovery sought by UBS from Assured, but the other important aspect of the case comes later on in the opinion, where Judge Francis discusses “the adequacy of the search terms that Assured proposed to apply to electronic documents.” As hinted at earlier, the methodology of the search itself is called into question, and an important point is made:
A court should be hesitant to resolve issues that demand technical expertise.
Judge Francis strongly recommends the use of experts or “a neutral consultant who will design a search strategy.” The use of experts “would be necessary for [the Judge] to offer an opinion as to the most efficient, search protocol.”