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Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues

March 17, 2021

Employing search terms to identify documents relevant to a lawsuit is a commonly accepted practice.  However, issues inevitably arise during the process of crafting search terms.  For example, how are search terms agreed upon?  What is the proper scope of search terms? Are the proposed terms appropriate for identifying different types of electronically stored information (“ESI”)?  A decision out of Michigan is a useful read for anyone seeking guidance on these, and other issues involving ESI (McMaster v. Kohl’s Dep’t Stores, Inc., 2020 WL 4251342 [E.D. Mich. July 24, 2020]) .

In McMaster, a lawsuit involving an American with Disabilities Act (“ADA”) claim, plaintiff made a motion to compel documents arising out of two disputes: (i) the time periods and scope of ESI searches; and (ii) the actual search terms to be used to identify potentially relevant documents.

Regarding the relevant time period for purposes of identifying potentially responsive ESI, Plaintiff argued that July 2014 – approximately six months prior to plaintiff’s leave of absence – was an appropriate start date.  In opposition, Defendants argued that September 2016 was more appropriate because that is when human resources began discussing Plaintiff’s performance issues.   To resolve this dispute, the Court relied upon the “broad scope of discovery standard” set forth in Rule 26(b).  Ultimately, the Court concluded Defendant’s proposed date range was too narrow, and selected January 25, 2015 – the date when plaintiff took a leave of absence – as the relevant start date for purposes of ESI searches.

In resolving the parties’ dispute about competing search terms, the Court relied heavily on United States v O’Keefe, (537 FSupp2d 14, 23–24 [D.D.C. 2008]), which stated: “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  And so, the Court declined to determine which search terms were most appropriate.  Rather, the Court held that “if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them.”

This case is a good reminder that while judges understand the complexity surrounding the e-discovery process, courts are loathe to resolve issues that should be addressed by the parties during cooperative and collaborative discovery.

*Thank you to second year associate, James Maguire in the Firm’s Uniondale office, for his research assistance related to today’s blog.