Saturday, November 01, 2008

2008-11-01 Search Protocol Warfare

In the latest chapter in the discovery dispute between the parties in D'Onofrio v. SFX Sports Group, Inc.,--- F.R.D. ----, 2008 WL 4737202 (D.D.C. 2008) the efficacy of proposed search protocols have (as we have expected) now become the subject to challenge. Magistrate Judge Facciola has no problem resisting the siren song of (and short-circuited an attempt t0 to win an argument by the use) of "techno-babble:"

"Defendants have proposed a protocol which, unfortunately, is highly technical. I made it clear at the hearing that I expected the lawyers to rely upon their obviously competent IT professionals and Mr. Bond to arrive at a protocol that would satisfy those professionals who fully understand what they were doing and produce a document that was easy to understand and use. What I got was a proposed defendants' protocol that is highly restrictive and full of undefined “buzz words.”
Additionally, in one respect the defendants' protocol is incomprehensible. On the crucial question of what will occur if the search yields previously unproduced e-mails, the defendants' protocol indicates that they will be handled “according to the protocol stated in paragraph 2 herein.” Defs.' Prot ¶ 8. But, paragraph 2 says that a Clear Channel employee must be present when the Legato system is accessed and there is no protocol whatsoever in paragraph 2 that makes the reference in paragraph 8 comprehensible."

This (perhaps not so gentle) chiding of the parties by reference to their "obviously competent IT professionals" and their utter failure to arrive at a mutually satisfactory protocol that was "easy to understand and use" speaks not so much to the IT professionals, but to counsel, either for their failure to understand what their IT professionals were doing sufficient to distill it into non-tech-speak, or for their refusal to do so, perhaps in hopes that their respective arguments would win judicial points for technological complexity.

Magistrate Judge Facciola then takes matters into the Court's hands:

"Since I have gotten so little help from counsel, I will create a protocol of my own using as best I can my understanding of the limited agreement that the parties reached when plaintiff's counsel reacted to defendants' proposal."

The Court, after noting that defendant failed to implement a proper litigation hold after receiving notice that plaintiff intended to sue, then rejects defendants' attempts to limit the scope of eDiscovery search, apparently because the court found that defendants had not conducted a proper search in the first instance:

"Defendants have agreed that plaintiffs' expert may search their computer system or individual computers for electronically stored information. Defendants, however, are unfairly and irrationally limiting the scope and potential results of the search to be conducted. They are obliged to permit the plaintiffs' expert to conduct a diligent search of all potential repositories of electronically stored information that are likely to yield information that is responsive to plaintiff's discovery demands. The restrictions they would impose are inconsistent with that responsibility and I reject them."

Judge Facciola then delivers the coup de grace, giving wide search latitude to plaintiff's expert:

"The parties do not even agree on which systems or hard drives are to be searched. They both reference the Legato system, but plaintiffs also seek access to defendants' local servers in the District of Columbia and to any computers that may be recovered. The testimony I have heard convinces me that plaintiff's expert must be permitted to search any depository of electronically stored information that may contain the following electronically stored information: (1) e-mails to or from plaintiff to include e-mails in which her name appears in the “cc” or “bcc” lines; (2) e-mail in which her name is mentioned; (3) electronically stored information created by her; (4) electronically stored information sent to her, again whether sent to her directly or as one of other recipients; (5) electronically stored information in which her name appears, whether her full name or her first or last name or initials."

Operative terms: "...any repository of electronically stored information"

For those thinking that ESI search disputes are outlier events, it is submitted that the following issues will be litigated with increasing frequency.

Link to the decision:

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