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Search Term Disputes: Valid Arguments or a Simple Lack of Cooperation?

Posted on May 10th, 2013

Many times, search term disagreements can be resolved through cooperative efforts. Indeed, the “meet and confer” requirement of the Federal Rules of Civil Procedure mandates parties to make a good faith effort to resolve such disputes without litigation.

In the March 14, 2013 order in the case Robert Bosch LLC v. Snap-on, Inc. Case No. 12-11503 (E.D. Mich. 2013), the district court listened to two sides of Motion to Compel that probably could have been resolved without litigation.

The defendant made a fairly common objection to the plaintiff’s proposed search terms: that they were overly broad, too common in their business and would result in overproduction of irrelevant electronic data.  For example, one of the search terms appeared on the email signature line for an entire department. The defendant also claimed that these search terms were unnecessary, as the defense had already agreed upon search terms using the products’ names that were the subject of the underlying suit.

The court disagreed with each of defendant’s arguments, and pointed out that the plaintiff had already agreed to the following in an attempt at cooperation:

  • The plaintiff agreed to exclude emails where a search term is only found in a signature line, and
  • The plaintiff agreed to the use of proximity connectors to cull the production and reduce irrelevant data.

The court also rejected the argument that searches based on the products in contention alone are sufficient, noting “the disputed search terms may uncover relevant documents that do not contain the accused products’ names.”

In the end, the defendants might have fared better better working with plaintiffs, who made reasonable attempts to address the defendant’s concerns. However, the defendant’s did secure a small win; the court declined to impose attorney fees as a sanction for their lack of cooperation.

ILS – Plaintiff Electronic Discovery Experts

 

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