Campbell v. Chadbourne & Parke LLP, 16-CV-6832 (JPO) (S.D.N.Y. Nov. 9, 2017).
First, the court considered whether the individual law firm defendants had to search for responsive documents within their personal and work email accounts. The defendants argued that they absolutely did not use their personal accounts for anything related to work. They labeled the plaintiffs’ requests as a “fishing expedition.” In contrast, the plaintiffs admitted that they used their personal accounts for work and agreed to search those accounts.
The court stated that, generally speaking, “What is good for the goose is good for the gander.” The court did not find the defendants’ representations, which did not square with the judge’s experience, persuasive. Rather, she said, “Since I am myself a human being — believe it or not — as well as a former law firm partner, I know that even individuals who generally … use their business email account for business don’t always adhere to that 100% of the time.” Therefore, the court ordered the individual defendants to search their personal email accounts for documents related to the alleged discrimination.
The court then turned to the plaintiffs’ request to have the defendants search for ESI in the records of three additional custodians. The plaintiffs stated only that they “believed” these unnamed custodians would have responsive ESI. They also contended that the additional searches would not impose an undue burden. The defendants countered that they had already agreed to “extensive” e-discovery. To that point, they had searched the emails of 25 custodians and processed 2.5 terabytes of data. The additional custodians were not relevant in the defendants’ view. The court agreed with the defendants, noting that if at some point the plaintiffs could offer “more than speculation” to support their request, it would reconsider the issue.
Finally, the court addressed the unresolved disputes between the parties about which “proximity operators” they should use in specific searches. The plaintiffs argued that the defendants’ proposals were “unnecessarily narrow.” Conversely, the defendants stated that the plaintiffs’ requests were “unnecessary and disproportionate.” Keeping terms more closely linked together, the defendants argued, would most effectively limit the results to “relevant and responsive documents.” The agreed terms, according to the defendants, would generate about 90,000 documents for review. On the other hand, the modifiers that the plaintiffs sought would expand the corpus to 115,000 documents.
The judge agreed with the defendants that most of the keywords were “common English words,” such as “partnership,” “offer,” and “remove,” that could return numerous irrelevant results. Her opinion focused on the differential between the documents that would be returned using the two competing proposals. She granted the plaintiffs’ broader requests where that differential was less than about 1,000 documents and compromised between the positions as needed.
Throughout the hearing, the court chided the parties, sarcastically calling the motion “what I live for as a federal judge.” She specifically derided the debate about proximity operators as “truly exciting” and “what I went to law school to do.”
Takeaways on ediscovery searches
When requesting additional discovery or objecting to an opponent’s request, focus on the discernible facts. Calculate and tell the court how many documents a proposed search is expected to return. Be sure to frame that burden in the context of the overall case. Here, the defendants withdrew numerous objections as soon as it became clear that the court was not concerned with small increases in the number of documents searched. Avoiding the court date — and the judge’s scorn — would have been preferable.
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