Several recent federal cases illustrate an apparent trend of federal courts becoming increasing engaged in assessing the details of parties’ e-discovery efforts, such as whether the correct search terms or custodians have been identified.
In American Home Assurance Co. v. Greater Omaha Packing Co., No. 11-cv-270 (D. Neb. Sept. 11, 2013), the court ordered a party that had produced very few e-mails to “disclose the sources it has searched or intends to search and, for each source, the search terms used.”
In Swanson v. ALZA Corp., No. 12-cv-04579 (N.D. Cal. Oct. 7, 2013), the court granted in part a motion to compel a party to apply several search terms (including Boolean operators) to a database of collected electronic information and produce the results to the requesting party. The court reviewed the requested search terms in detail and found that about half of the terms should be applied, despite the fact that the producing party had already produced over 600,000 pages of electronic documents.
In Banas v. Volcano Corp., No. 12-cv-01535 (N.D. Cal. Oct. 4, 2013), the court reviewed a party’s e-discovery effort and faulted the party for not searching the e-mail of several custodians. The court held that the party’s approach “might have been a reasonable way to gather the relevant documents,” but the court was troubled by the fact that the approach “was not discussed in advance with the plaintiffs, let alone agreed to.”