This case, which arises from allegations of pay discrimination by New Mexico State University (“NMSU”) based on gender, in violation of Title VII, serves as an important reminder that all counsel – irrespective of one’s computer know-how – understand their ESI obligations and cooperate in good faith with opposing counsel when engaging in the process of retrieving electronically stored information (“ESI”).
In this pay discrimination case, the United States alleged that NMSU paid a female employee less than her male counterparts, although they were performing similar responsibilities for NMSU’s track and field program. During discovery, plaintiff sought production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning her pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc. Eventually, disputes arose over NMSU’s responses to plaintiff’s discovery requests and the United States filed a motion to compel.
In response, NMSU detailed the “more than 20” keyword searches it conducted (without conferring with plaintiff’s counsel) to locate documents responsive to the plaintiff’s requests. Thereafter, the United States identified what it perceived to be inadequacies and deficiencies in NMSU’s searches notwithstanding the 14,000 pages of documents produced. Before the Court could resolve the issue of the adequacy of searches, NMSU moved for a protective order to preclude further searching for responsive documents.
Citing defense counsel’s failure to “adequately confer” before performing keyword searches that were “inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order NMSU to conduct additional searches with specific terms. The Court found defense counsel’s failure to confer with its adversary particularly troubling as “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.”
Here, the failure to adequately confer in good faith was the very reason for the inadequate searches. The Court went on to observe:
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.
[Citation omitted] [emphasis added].
While this decision does not actually state that counsel must disclose their ESI search terms to opposing counsel, it comes pretty darn close. By commenting that transparency in all aspects of ESI preservation and production is necessary, this decision effectively obligates counsel to discuss with opposing counsel the intended search terms before executing on those terms. Indeed, collaboration and cooperation are again held to be central to one’s discovery obligations. And, here, counsel’s failure to meet and confer and engage the adversary in that process resulted in counsel earning the expensive right to repeat the process – this time with judicial weigh-in. Perhaps equally important of a take-away from this decision – counsel’s lack of computer savvy does not extricate counsel from the obligation to understand one’s e-discovery obligations and attain competency in technological advances relevant to litigation in today’s E-centric world.