Defining Scope of Search Terms, Custodians and Timeframe In Class Action
In the class action lawsuit Fort Worth Employees’ Retirement Fund, et al. v. J.P. Morgan Chase & Col, et al., No. 09 Civ. 3701 (JPO)(JCF) (S.D.N.Y. December 16, 2013), the plaintiffs are purchasers of mortgage-backed securities seeking electronically stored information (ESI) from defendants. There were three eDiscovery disputes: plaintiffs claimed defendants’ search parameters were too narrow, the number of custodians should be increased, and the time period of discovery expanded.
Regarding the first dispute, the defendants used 80,000 search terms that yielded 875,000 documents. However, plaintiffs claimed these search terms were “woefully deficient.” The search terms were variations on disputed loan and offering names and numbers, but would not pull up email threads or email chains that did not specifically mention the loan number or offering name. The court noted that 875,000 is “actually minimal” for a case of this size, and agreed with plaintiffs that the search terms should expand beyond just numbers and names of the loans and offerings at issue. The court noted that both sides proved their burdens: the court agreed plaintiffs were entitled to expanded search terms, and the court agreed that defendants were rightly concerned that the proposed search terms went too far in the other direction. The court ordered the parties to work together in good faith for a mutually acceptable ESI protocol, and if they could not, the court would order a special master (and the parties to split the cost of such.)
Regarding expanding the number of custodians, defendants had already searched 42 and plaintiffs wished to expand the search to 30 more. The defendants agreed to 1 more, and the court agreed that 18 custodians should be added, as those people were present on a list of the “working groups” from the loans at issue. The court rejected expanding the search to the remaining 11 proposed custodians, as they did not appear on any working group list for the offerings at issue.
Regarding the time frame, defendants had searched from 60 days prior to the first offering at issue and 30 days past the last remaining offering. The parties agreed to expand the opening date, but defendants did not agree to the proposed 3 years after the time frame scope as proposed by plaintiffs. The court told them to attempt to compromise, or the issue would be tabled pending appointment of the special master.