A federal court considering a products liability case cautioned that attorneys may not rely on custodial self-collections and must instead test the accuracy of their clients’ discovery efforts in order to ensure that all appropriate sources of data have been searched, that responsive ESI has been collected, and that appropriate documents are eventually reviewed and produced.

We work with our clients through all phases of the discovery process, including data mapping and custodial interviews, to ensure that discovery efforts will withstand any scrutiny from opposing counsel or the courts.

The plaintiffs in Lyman v. Ford Motor Co., Case No. 21-10024, 2023 WL 4231713 (E.D. Mich. June 28, 2023) allege that certain Ford vehicles have a manufacturing defect that causes an excessively high rate of oil consumption. When the plaintiffs moved to compel electronic searches of all records associated with four Ford custodians, Ford countered that it made a full production of responsive documents.

A magistrate judge granted the motion to compel, finding that the limited production from key Ford custodians permitted a reasonable deduction that other documents might exist. She also noted that Ford provided a “vague description of its search methodology” and claimed privilege for testimony that plaintiffs said proved the company’s search methodology was too “custodian-driven.” The Court ordered Ford to cooperate with opposing counsel by being transparent regarding its search terms and search methodology, and rejected any argument that a party’s search protocol is privileged.

Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →

Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →