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Search Terms in eDiscovery: Privileged or Discoverable?

Posted on April 17th, 2014

Plaintiff eDiscovery Experts Review the Latest Case Law

In the absence of an agreement among the parties or an order by the court to employ predictive coding, the traditional method of identifying responsive documents for production has been through the use of key word search terms. But how does a plaintiff trial attorney know what search terms are being used by the defense? Generally, this should be discoverable data and courts tend to encourage cooperation and disclosure between parties about search terms. However, limitations regarding relevancy and undue burdens will likely still apply.

The Latest Case Law Regarding Disputes Over Search Terms

Procaps S.A. v. Patheon, Inc. [1] (Court orders parties to collaborate on search terms. In a subsequent order dated March 18, 2014, the court reiterated that attorneys must get input from the data custodians in the foreign country where the Plaintiff corporation is headquartered to come up with relevant search terms in the native language.)

Assaf v. OSF Healthcare System [2] (Plaintiff is to participate in the parameters of the defense production search, and if the initial search on the seed set uncovers additional information, Plaintiff granted leave to re-file Motion to Compel on a later date.)

Viteri-Butler v. University of California [3] (Court found it unacceptable that Defendant did an ESI search without agreed-upon search terms. Plaintiff was to provide list of search terms and Defendant ordered to re-do the search.)

Fort Worth Employees’ Retirement Fund, et al. v. J.P. Morgan Chase & Col, et al.[4] (Search terms disclosed; court granted Plaintiff’s motion to expand search term parameters in class action case.)

Rex Brown v. West Corporation [5](Court denied motion to expand the search terms, as it deemed the additional request failed to meet the relevancy threshold.)

Swanson v. Alza Corporation [6] (Court declined to order Plaintiff to expand its search terms with all of Defendant’s suggested additional terms, but agreeded that Boolean phrasing is appropriate and useful.)

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[1] Case No. 12-24356-CIV-GOODMAN (S.D.Fla. February 28, 2014).

[2] No. 11-4108 (C.D.Ill. January 29, 2014).

[3] Case No. CV 12-02651 PJH(KAW), (N.D.Cal. January 7, 2014).

[4] No. 09 Civ. 3701 (JPO)(JCF) (S.D.N.Y. December 16, 2013).

[5] No. 8:11CV284 (D.Neb. December 4, 2013).

[6] No. CV 12-04579-PJH (KAW), (N.D. Cal, October 7, 2013).

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