The Helping Hand of Cooperation over Search Terms

The Defendants in Romero v. Allstate Ins. Co., opposed a motion to compel to confer with the Plaintiffs over search terms.  Romero is an employment class action against Allstate involving alleged coercion to convert employees into independent contractors without their original benefits. Romero v. Allstate Ins. Co., 2010 U.S. Dist. LEXIS 111985 (E.D. Pa. Oct. 21, 2010).

The Plaintiffs’ Motion to Compel would have required the Defendants to meet and confer over “additional relevant custodians and search terms, and what searches Allstate  conducted in the past, ‘so that Plaintiffs receive all relevant documents concerning the Release.’” Romero, at *38.

The Defendants resisted, arguing that they were “under no obligation to provide plaintiffs with a list of the search terms Allstate has employed in the past or the method by which Allstate searched for responsive materials.” Romero, at *38-39.

The Defendants furthered argued that such search history was privileged attorney work product protected from disclosure.  Romero, at *39.

The Court agreed with the Defendants a little….and disagreed with them a lot more.

The Court cited both the meet and confer requirements under Federal Rule of Civil Procedure Rule 26(f) and the Sedona Conference.

As the Court cited from Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, at *358:

The Federal Rules of Civil Procedure, case law, and the Sedona Principles all further emphasize that electronic discovery should be a party-driven process. Indeed, Rule 26(f) requires that the parties meet and confer to develop a discovery plan. That discovery plan must discuss “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” Fed. R. Civ. P. 26(f)(3)(C) (emphasis added). In fact, the commentary to the rule specifically notes that whether metadata “should be produced may be among the topics discussed in the Rule 26(f) conference.” Fed. R. Civ. P. 26(f) advisory committee’s note, 2006 amendment.

            Romero, at *39.

Citing the Sedona Conference:

Cooperation . . . requires . . . that counsel adequately prepare prior to conferring with opposing counsel to identify custodians and likely sources of relevant ESI, and the steps and costs required to access that information. It requires disclosure and dialogue on the parameters of preservation. It also requires forgoing the short term tactical advantages afforded one party to information asymmetry so that, rather than evading their production obligations, parties communicate candidly enough to identify the appropriate boundaries of discovery. Last, it requires that opposing parties evaluate discovery demands relative to the amount in controversy. In short, it forbids making overbroad discovery requests for purely oppressive, tactical reasons, discovery objections for evasive rather than legitimate reasons, and “document dumps” for obstructionist reasons. In place of gamesmanship, cooperation substitutes transparency and communication about the nature and reasons for discovery requests and objections and the means of resolving disputes about them.

Romero, at *40.

The Court held it was reasonable to order the parties to meet and confer on search terms the Defendants intended to use, custodians to be searched, date ranges and “any other essential details about the search methodology…”  Romero, at *41-42.

The Court stated that the conferring on the search terms would “eliminate duplicative discovery and help ensure that the searches remain narrowly focused on the core issues present in this case.”  Romero, at *42.

The Court further held that any search term development was not protected by the work product doctrine, stating the search methodology “goes to the underlying facts of what documents are responsive to Plaintiffs’ document requests and does not delve into the thought processes of Defendants’ counsel.” Romero, at *42.

Bow Tie Thoughts

Parties should meet and confer over search terms, determine custodians and date ranges to make their search and production of discovery as effective as possible.  This will save time, increase efficiency and certainly reduce the cost of litigating motions to compel.


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