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When are Proposed Search Terms Overly Burdensome?

Posted on November 3rd, 2014

In TVIMM LLC v. McAffee, Inc., Case No. 13-cv-04545-VC(KAW)(N.D.Cal. October 15, 2014), a search term and electronic discovery dispute arose. Plaintiff eDiscovery requests sought email correspondence from Defendant. There was an agreed ESI Order, which dictated the parties were allowed five search terms. Further, they could not request “indiscriminate terms, such as the producing company’s name or its product name…unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction.”

Plaintiff sought to compel the production of Defendant emails for the following Boolean search terms:

  1. “vulnerabl” NOT with w/1 scanner
  2. “remediat”
  3. “auto” w/10(respon* OR update* OR correct*)

Defendant objected to these search terms as unduly burdensome, claiming such terms will produce over 500,000 email and attachment hits. Further, proposed search terms #1 and #2 were truncated product names (Vulnerability Manager and Remediation Manager), which per the ESI Order, was prohibited unless the terms were narrowed to reduce the risk of overproduction. Defendant objected to search term #3 as overly burdensome, as it would include any automatic “out of office” responses.

The Court considered the language of the ESI Order and Federal Rule 26(b)(2)(C), where a court should limit discovery if it is (to paraphrase) 1) unreasonably cumulative or duplicative, 2) if the party had ample opportunity to obtain the discovery, or 3) the burden of the purported discovery outweighs its benefits.

The Court granted in part and denied in part Plaintiff’s Motion to Compel. Regarding search terms #1 and #2, the Court agreed these were product names, and therefore in accordance with the ESI Order, must be narrowed to reduce the risk of overproduction. The Court ordered the parties to meet and confer to narrow the search terms by agreement.

Regarding #3, the Court first points out that this is, in fact, three search terms, not one. This is because of the use of the Boolean “or”, the request is “auto” within 10 words of respon* OR auto” within 10 words of update* OR auto” within 10 words of correct*. The court held they should produce emails per these three search terms, but first should remove any “out of office” or automatic response that might fall under these terms.

ILS – Plaintiff Electronic Discovery Experts

Did you know? “Boolean” refers to British mathematician George Boole (1815-1864), who developed a system of logic with algebraic equations.

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