Commercial Litigation and Arbitration

Electronic Discovery — Email Database Searches — Protocol / Form of Production

The parties in Williams v. Taser Int’l, Inc., 2007 U.S. Dist. LEXIS 40280 (N.D. Ga. June 4, 2007), like the parties in many other cases, could not agree on an email database search protocol. Plaintiffs wanted to be present at the corporate defendant’s facilities, looking at the screen, and provide search requests in real time to the IT professional actually performing the database searches. Under the plaintiffs’ proposal, the results of each search would immediately be reviewed for privilege, and plaintiffs would then be afforded access to any document to which no privilege objection was asserted.

The corporate defendant did not want plaintiffs looking over its shoulder, objecting that plaintiffs’ presence would interfere with business activities and risk the disclosure of privileged information. The corporate defendant proposed that search terms be exchanged and agreed on in advance, and the results would be screened for privilege before plaintiffs saw anything. Plaintiffs would then have the opportunity to propose different search terms.

District Judge Richard W. Story, clearly annoyed by the parties’ ‛demonstrated inability to work together reasonably in an effort to resolve discovery disputes,“ rejected both approaches and instead ordered the corporate to perform promptly 21 very specific searches (e.g., ‛‘safe*’ within same sentence as ‘X26’“), review the results for privilege and produce them on a rolling but expeditious basis. To expedite the process, the Court’s order includes the following noteworthy (i.e., copy-worthy) provisions:

• ‛Any documents produced pursuant to this Order shall be considered confidential and subject to the Protective Order.“

• ‛Any documents produced pursuant to this Order shall be subject to the ‘clawback provision’ set forth in“ this Order.

• The corporate defendant ‛shall not refuse to produce any document returned by the searches stated above on the basis of relevancy, undue burden, or any other ground not specifically provided herein without first obtaining a protective order from this Court.“

• ‛All documents produced pursuant to this Order shall be made available to Plaintiffs in a searchable, electronic form.“

The Williams decision also has an interesting take on the corporate defendant’s claim of burdensomeness because (i) it employed only one IT support staff employee experienced in conducting electronic searches, and that, due to numerous other responsibilities, this employee could not dedicate 100% of his time to conducting electronic searches, and (ii) it retained only a limited number of attorneys who are capable of reviewing documents for privilege. The Court observed that the corporate defendant ‛implies that because it has elected to hire and train only a single technology employee, and because it has chosen to retain only a handful of attorneys to conduct document review, it is somehow relieved from its obligations to timely respond to Plaintiffs' discovery requests. That is not the case. Rather, the Court expects that [the corporate defendant] will make all reasonable efforts to comply with its discovery Orders including, if necessary, retaining additional IT professionals to search electronic databases and adding additional attorneys to perform document review.“

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