How to Get an eDiscovery Evidentiary Hearing

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI.  Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012).

The litigation involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce information from 10 individuals identified by the Defendants with knowledge of the facts in the lawsuit.  Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written complaints, any emails or phone logs, the investigation files, and their personnel files.” Chura, at *4. The production also lacked ESI one would normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director or facility administrator regarding their investigation; complaints by the Plaintiffs; complete wage payment records; performance appraisals; or witness statements.  Chura, at *5-6. As the Plaintiffs argued and Court recounted:

It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the complaints had no email, correspondence of other reports.  Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply running an Outlook search on the alleged harasser’s computer. Chura, at *7.

The Court ordered the following evidentiary hearing over the discovery dispute:

Based upon the limited information provided in the parties’ briefing, the Court cannot determine whether Defendant met its duty to both preserve relevant evidence or conduct a reasonable search for ESI responsive to Request No. 1. It is unclear what actions Defendant undertook in order to preserve and search for ESI responsive to Request No. 1. The Court finds that Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery requests.n5 The Court will therefore set an evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI responsive to Plaintiffs’ interrogatories and requests for production. Based on the evidence presented at the hearing, the Court will determine whether Defendant made reasonable efforts to preserve relevant evidence and search its computer systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

There are many attorneys that have a difficult concept with searching for electronically stored information.  I have met some who consider “search” merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to define “liberty.”  There are many forms of “searching” and it is important to understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system to identify custodians, date ranges and other determining information to identify ESI for preservation.  This ESI can then exported out for analysis in an “early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a strategic collection methodology that can be defended in court. This can include preserving the information with target search technologies to find relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit Terabytes of data may want to “search” the dataset with a “computer-assisted review” application, such as OrcaTec’s Document Decisioning Suite. There are several products on the market that can “learn” from a reviewing attorney and identify relevant other relevant ESI based off the attorney’s relevancy determinations.

The actual review of electronically stored information often requires running search terms across ESI based off a propounding party’s discovery requests.  All litigation support review platforms have basic search technology, in addition to different advanced analytical tools.

For example, XERA from iConect can identify relationships between email messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges, however, there is still a huge “search” problem in the preservation and production stages of a lawsuit.  Many of these issues can be resolved by using the right technology by people with knowledge on how to use the technology correctly. The right technology will differ case to case, which only highlights the need for lawyers to work with consultants who understand eDiscovery tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned in this post and friends at each organization).

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