In my December 2016 blog post, I wrote about how developing effective key words is very much an iterative and thought intensive process.  This message was recently reaffirmed by a decision out of the Southern District of Ohio, wherein the Judge reminded us that the process of identifying search terms it not merely one of guesswork.  Rather, it requires deliberative thought, testing and refining such that the searches yield target-rich and proportionate results.

In the complex commercial matter, AMERICAN MUNICIPAL POWER, INC., Plaintiff, vs. VOITH HYDRO, INC., Defendant, the parties were in litigation over the construction of four hydroelectric power plants (“Projects”) that spanned a decade.

When it came to discovery, the parties could not have been more oppositional in their respective stances.  Voith Hydro, Inc. (“Voith”) requested plaintiff conduct a search for ESI using only the four Project names (Cannelton, Smithland, Willow and Meldahl) as standalone search terms without qualifiers.

American Municipal Power, Inc., (“AMP”)  on the other hand, requested that Voith search its ESI collection without reference to any of the four project names; searching instead for various employee and contractor names connected in a boolean way with a list of common construction terms and the names of hydroelectric parts restricted only by date range.

However, both proposals were too expansive in their scope and, as a result, too burdensome.  For example, when proposing its search terms, defense counsel did not appreciate that not every shred of ESI that hit upon one of the four fairly common project names (i.e., Willow) would be relevant or, at the very least, worth examining for relevance.  As the Court noted, “As owner, AMP had retained millions of documents for more than a decade that contain the name of the four projects which refer to all kinds of matters unrelated to the case.”  The Project names –detached from any other qualifier or restriction – returned documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc.  All content that “hit” on a search term, but none of which was relevant to the construction of the four hydroelectric power plants.  Thus, accepting Voith’s request would result in overly broad results not sufficiently tailored to the needs of the case.  And so, Judge Deavers ruled against the defense on the four project names keywords request, and granted a protective order for the plaintiff because, in the Judge’s words:

“The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.”

AMP’s more “expansive” search terms, however, were equally problematic.  Indeed, if the searches combined employee and contractor names together with a list of common construction terms and the names of hydroelectric parts, the results included innumerable confidential communications about other projects Voith performed for other customers.  Therefore, like Voith’s request, AMP’s search request similarly returned a large corpus of documents not relevant to the litigation.  AMP’s proposed searches also raised confidentiality concerns (i.e., commercial information about other customers).*

Keyword searching should be an iterative process that is tested and refined, and tested and refined again, before any commitments to search are made.

* AMP proposed to exclude the names of other customers’ project names with “AND NOT” exclusionary phrases.  This was deemed by the Court unworkable because Voith could not possibly reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects.

Have questions on keyword searching?  Please contact me at kcole@farrellfritz.com. 

In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern District of Wisconsin granted IDC’s motion to compel the production of more than 600 documents that had previously been produced by Bonddesk with extensive non-responsive redactions applied.

Bonddesk argued that the applied redactions were necessary to protect confidential business information that had no relevance to the underlying dispute.  In making this argument, Bonddesk relied on In re Takata Airbag Prods. Liab. Litig., 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016). In the Takata case, the district court in the Southern District of Florida permitted the redactions based upon “non-responsiveness,” because of the “concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.”

In the present case, however, the Court looked to the Federal Rules for guidance. Specifically, the Court observed that redactions based upon relevance are not explicitly supported by the Federal Rules, and seemingly contrary to the Rules’ allowance for broad discovery. The Court also reasoned redactions based upon relevance (or a lack thereof), have the potential for abuse. For example, should non-responsive redactions be deemed per se proper, parties may be incentivized to “hide as much as they dare” (internal citations omitted).   Moreover, the Court reasoned that Bonddesk failed to provide an otherwise “compelling reason” for its “extensive” redactions and failed to explain why the protective order in place did not provide adequate protection.

Therefore, based upon the Court’s fear of party abuse, Bonddesk’s failure to articulate a compelling reason for the redactions, and Bonddesk’s failure to articulate why the protective order was insufficient, the Court granted IDC’s motion to compel. The Court concluded it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds.”

This decision does not conclude relevance redactions are per se impermissible, but it reminds us, as practitioners, that engaging our adversary in a meaningful discussion about inter alia redactions, is good practice. Recall, the theme of late from the federal courts is “cooperation”. Here, there was a protective order in place and no compelling reason to apply the redactions at issue. Query whether had the lawyers spoken, the cost of motion practice and a subsequent (un-redacted) production could have been avoided. It seems lately that a collaborative approach is preferred by the Bench.  However, if such a meet and confer/discussion is not practical or possible, at least be prepared to provide compelling reasons why a robust “So Ordered” confidentiality agreement is not sufficient to protect the content of your client’s documents before unilaterally applying redactions.