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Must a Party Disclose How It Searched for Electronically Stored Information?

Posted on October 15th, 2014

Fleming v. Escort, Inc. et al., Case No. 1:12-CV-066-BLW(D.Id. Sept. 29, 2014) is a case alleging patent infringements that went back approximately fifteen years. Part of this court’s order included a ruling on Plaintiff’s Motion to Compel electronically stored information (ESI).

Plaintiff averred that although the allegations in this case went back 15 years and into the present, Defendant had produced almost no email correspondence in response to Plaintiff’s 65 document requests and 12 interrogatories. Defendant countered that it has not produced any email because all of its emails were privileged.

Can a Party Claim Global Email Privilege Without a Privilege Log?

A party cannot claim global email privilege without a privilege log, and the court noted it was unbelievable that email going back 15 years was all privileged. Further, the court questioned how Defendant “knew” the emails were all privileged without doing a search of the electronic data. Plaintiff was only requesting answers to three questions regarding the emails:

  1. What search terms were used?
  2. What computers or repositories were searched?
  3. What was the time frame of the searches?

The court found these questions reasonable, and noted there was no way to evaluate Defendant’s claims that the defense production was complete without responding to these questions. Calling the claim that all email correspondence was privleged “fantastical,” the court used this as “yet another example of vexatious conduct” by defense counsel.

The court ordered the three questions to be answered within 10 days, an ordered attorney fees to be paid for the preparation of this Motion to Compel and the Reply. The court warned that if these questions were not fully answered in 10 days, Plaintiff may file a new motion for sanctions.

ILS – Plaintiff eDiscovery Experts

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