Judge Says “Dude, Where’s Your CAR?” – eDiscovery Case Law
September 05, 2013
Ralph Losey describes a unique case this week in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One). In Northstar Marine, Inc. v. Huffman, Case 1:13-cv-00037-WS-C (Ala. S.D., 08/27/13), the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.
On June 10 of this year, the parties entered into an agreement for handling electronically stored information (“ESI”) that noted:
“Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party. Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.”
Sounds like a forward thinking plan, right?
As the order also noted, “In addition, the parties agreed to use certain search terms and agreed that ‘[a]ll documents in the search result sets shall be produced immediately to the other side in native format including all metadata.’” On June 11, the court entered a Supplemental Rule 16(b) Scheduling Order adopting the parties’ plan with regard to ESI.
The defendants were ready quickly, informing the plaintiff on July 3 that they had “collected their ESI and were ready to produce the collected documents” and “inquired as to the method that plaintiff was using to collect its documents for production”. The defendants sent subsequent inquiries on July 8 and July 24. On August 6, plaintiff’s counsel notified defendants’ counsel that the plaintiff’s IT provider could not perform the tasks necessary to collect the ESI and that the plaintiff was “trying to locate outside providers of electronic search technology to assist with plaintiff’s ESI production”. The next day, the defendants filed their motion to compel.
On August 21, the plaintiff filed a response to the defendants’ motion, not objecting to the defendants’ discovery requests, but rather stating that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” and did not provide a date to complete its production obligation.
Noting that a Rule 16(b) Scheduling Order “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril”, Judge Cassady called the plaintiff’s failure to comply with the Court’s scheduling order and supplemental orders “unacceptable”. He also stated that “Plaintiff’s attempts to find an inexpensive provider certainly do not constitute due diligence” and granted the defendants’ motion to compel.
Ralph notes in his observations the perils of agreeing to search terms that have not been tested in advance. I experienced that very issue with a client that had already agreed to search terms before I was brought in to assist – as a result, one term alone retrieved over 300,000 files with hits because they got “wild” with wildcards. Always test your search terms before agreeing to them!
So, what do you think? Do you test your search terms before agreement with opposing counsel? Please share any comments you might have or if you’d like to know more about a particular topic.
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