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You Can’t Always Get What You Want—But You Might Find, You Get What You Need – Case Law Update

Judges will ultimately determine the proportionality of discovery based on what they believe is essentially needed. That need is best defined by an appropriately negotiated ESI protocol with reasonable search terms.

March 07, 2023 — by Joe Tate, Counsel and Managing Director, and Nicole Gill, Counsel, CODISCOVR

In In re Diisocyanates Antitrust Litigation, No. 18-1001, 2023 WL 427082 (W.D. Pa. Jan. 26, 2023), Judge W. Scott Hardy considered whether to compel the full production of all calendar entries from approximately 45 custodians over a five-year period and the production of relevant text messages after a full linear review.

Judge Hardy ultimately denied the plaintiffs’ motion to compel production for the following reasons:

  • The parties already agreed upon initial search terms pursuant to a Stipulated ESI protocol, and the defendants had already made substantial productions based upon the search term review. Granting the motion would expand the defendant’s review and production obligations beyond the agreed-upon parameters.
  • Plaintiffs could propound targeted follow-up discovery requests based upon their review of produced documents.
  • Review of such a large universe of documents without the benefit of search terms would be too burdensome in time and resources. While imperfect, search term use constitutes a reasonable search for responsive information.

While you may not always get what you ask for, judges will ultimately determine the proportionality of discovery based on what they believe is essentially needed. That need is best defined by an appropriately negotiated ESI protocol with reasonable search terms.

Our team of attorneys routinely assists with the negotiation of ESI protocols and search terms so that you “get what you need” from your discovery.


 

Joe Tate
Joe A. Tate, Jr., Counsel 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
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 →

 


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