In a Fair Labor Standards Case against Butterball, the Plaintiffs claimed the Defendants’ ESI production was incomplete. The Defendants in turn claimed that the “burden” of producing the discovery was burdensome, justifying cost shifting. Helmert, et al., v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010).
While that sounds like a standard e-Discovery dispute, something was not right in the kitchen.
Searching for the Right Recipe
Search terms were an “iron chef-esq” battle in the case.
The Defendants ran search terms over active and archived email databases of twenty-two custodians. Helmert, at *4.
The Plaintiffs sought to compel the Defendants to run an additional 70 search terms over forty-three custodians. Helmert, at *9.
The two sides debated and narrowed search terms across a significant portion of the opinion, with the number of custodians and search terms fluctuating.
One element of the search term dispute was searching “Donning and Duffing” cases against one of the Defendants and its subsidiaries. Helmert, at *11.
A Bad Taste in Your Mouth
The Defendants made an argument that tasted like a turkey brine of tuna and sulfur in soda water: It was “impossible” to search email messages for more than one word in a sentence. Helmert, at *13.
The Court did find the Defendants needed to produce additional discovery, but added a big caveat:
The Court does agree that, to the extent that it is impossible to conduct an electronic search of emails for one term within the same sentence as another term, requiring Butterball to do so would be unduly burdensome. The plaintiffs offer no evidence that Butterball can, in fact, perform such a search electronically. Nor do they offer any alternative method for conducting such a search.
Helmert, at *14-15.
The Plaintiffs did argue the Defendant could search for the first term and then run a second search as a “work around” to this technically “impossibility.”
A Burnt Turkey
The “impossibility” in this case was attempting to search active and archived email, not necessarily preserved ESI.
This raises the issue, just what sort of litigation hold had been enacted? Was the data at all collected or were the Defendants searching over live and archived data the entire time?
If the data had been collected and preserved with any of several different collection tools, the “impossibility” would have faded away, instead of lingering like a burnt turkey.
One example of how this search could have been performed would have been by performing a Proximity Search with EnCase e-Discovery, which allows for a keyword search within a user defined proximity of other keywords.
As explained by Alexis Robbins of Guidance Software, here is how the search would have been possible:
EnCase® eDiscovery supports the ability to search multiple keywords within a sentence via its proximity search function. Proximity search allows for keyword search within a specified number (user defined) of keywords of another keyword. For example, with EnCase eDiscovery a user could enter a whole word search expression “Stock Option” and identify all instances of the words Stock and Option within a proximity (2) of each other. Proximity support is not with EnCase® Portable, at this time, which does straight keyword searching.
- EnCase eDiscovery searching of “Stock” within two words of “Option”
Bow Tie Thoughts
Lawyers who are new to electronic discovery may assume things are “impossible.” Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive.
Consulting with a third-party expert, or even performing a Google search, may prove the “impossible” is actually a common practice in many situations.
This case likely would have saved time and money if the parties could have agreed on the key custodians, had a third-party preserve the data and then had an index which could be searched based on agreed upon keywords within the same sentence. This could likely would have cost less than the protracted litigation, meet and confer conferences and a motion to compel battle.
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