In the case Swanson v. Alza Corporation, No. CV 12-04579-PJH (KAW), (N.D. Cal, October 7, 2013), Defendant filed a Motion to Compel the Plaintiff ESI production. Specifically, Defendant sought to compel Plaintiff to use its chosen search terms and to update the interrogatories (the parties were able to resolve the interrogatory dispute without the court ruling on same.) Plaintiff had already provided over 600,000 pages of ESI and an additional 160,000 documents from electronic data as part of his production, and therefore objected to the request to use new search terms.
Although the rules provide for a broad scope of electronically stored information (ESI), Fed. R. Civ. P. 26(b)(2)(B) also provides that a party need not provide discovery when relevancy would be disproportionate to the expense or burden.
Plaintiff characterized the additional search terms as 89, defendant claimed only 25 “searches” but with multiple terms and Boolean phrasing. Plaintiff also ran two sample sets of the searches requested and reported that one took 23 hours and the other 34 hours, without even reviewing for privilege. Further, the court noted that Defendant failed to assert what documents it thought was “missing” from Plaintiff’s ESI production. However, although Plaintiff objected to Defendant’s suggestion that it be given access to the entire database to run a search itself, the court was not entirely persuaded that running additional searches would be unduly burdensome. The court agreed that Boolean phrasing would be useful in this case.
Although the court agreed that Plaintiff should employ the suggested Boolean phrasing, the court declined to order all of the suggested search terms by Defendant. The court agreed that the additional search terms would result in duplicative documents, as any proposed benefit would likely be outweighed by the costs and burden of production.