Are Emails Containing Search Term Keywords Automatically Discoverable?
Lewis v. Bay Industries, et al., Case No. 12-C-1204, (E.D.Wis. Sept. 30, 2014) is a case where the plaintiff alleged unlawful retaliation under state and federal law. Pending before the court is the employer’s (“Bay”) Motion for Summary Judgment and Lewis’ Motion for Sanctions under Rule 37.
Lewis contended that certain emails were deleted by Bay after a litigation hold notice was issued. Bay disputed this allegation and noted it had searched all electronically stored information for the five custodians that Lewis requested with the agreed-upon search terms. After receiving that, Bay offered its computer hard drive to Lewis’ expert to make a forensic mirror image of the hard drive. Lewis’s expert found additional emails that had been deleted which contained the search terms, and such emails were the basis for the Motion for Sanctions.
The court first noted that Rule 37 only authorized sanctions for disobeying a discovery order, but Bay did not disobey any discovery order. In fact, it had voluntarily handed over its entire computer so Lewis’ expert could do a forensic examination. The fact that he found additional emails that matched the search terms was explained by the fact that Bay had originally produced emails with the search terms from only five custodians, but Lewis’ expert searched all the employer’s custodians.
Further, the fact that some emails were deleted by users did not constitute spoliation, as the emails were recovered from other sources and nothing suggested the deletions were done purposefully to evade discovery obligations. The court noted that “Lewis seemed to assume that if an email contained his key-word search terms, it was for that reason alone discoverable. But search terms are to assist in locating discoverable documents or electronically stored information (ESI); their presence does not by itself make a document relevant or discoverable.” Id.
The court denied Lewis’ Motion for Sanctions and granted Bay summary judgment on other grounds.