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Jul 200929
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Litigation in the Digital Age of Discovery: How to Ensure “Reasonable” Searching of Electronically Stored Information

We litigate in a digital age. As a result, electronically stored information (ESI) is subject to discovery in a lawsuit. Discovery demands that each side produce to the other side its information that is relevant to the suit. These days, business information is commonly “filed” in computers, servers and other electronic storage medium more so than in filing cabinets. These electronic sources are repositories of relevant ESI, which must be identified and produced in litigation.

How does a party identify all of the relevant information located in these electronic storage media? The “rules” for how to search ESI are still being written, but recent cases are laying out some boundaries.

In Qualcomm Inc. v. Broadcomm Corp., a district court in California found that Qualcomm’s failure to conduct basic searches on ESI prior to trial was equivalent to withholding documents. The penalty for not producing the 46,000 relevant documents was Broadcomm’s attorney’s fees – about $10 million. Importantly, the court believed that Qualcomm, its attorneys, or both had intentionally not searched for the highly relevant documents in order to preserve their case.

Qualcomm’s take home message: Make sure that your company searches all ESI relevant to the litigation. Attorneys handling your company’s litigation will need to understand your business’s structure, the various roles of your employees, and where information is kept. Any witness for deposition or trial will also need to have his or her data searched.

In Victor Stanley, Inc. v. Creative Pipe Inc., a district court in Maryland found that Creative Pipe had waived privilege on 165 electronically stored documents it had inadvertently produced to opposing counsel. The waiver allows opposing counsel to use the documents as evidence at trial, provided they are otherwise admissible. Importantly, the court determined that Creative Pipe “overproduced” as a result of not conducting reasonable searches, and not reviewing what they were producing.

In the digital age of litigation, companies must straddle the line between producing relevant ESI, but not “overproducing” ESI. Is there a method for doing this? Studies are still underway to evaluate ESI searching procedures and recommend standard processes for litigants. In the meantime, both Qualcomm and Victor Stanley agree that companies must be able to justify the search process they use. This includes choosing appropriate keywords; performing sophisticated searches when necessary; and “sampling” the results to assure it is yielding the expected results. Courts suggest the ideal is that parties devise and adhere to a joint protocol for searching.

While appropriate searching may seem intimidating, it is possible to do it appropriately and cost-effectively. Attorneys at Woodard, Emhardt, Moriarty, McNett & Henry possess the scientific and technical backgrounds necessary to ensure that a correct methodology is chosen for ESI searching. As stated in Victor Stanley, “…doing it right the first time is always cheaper than doing it over if ordered to do so by the court.” 250 F.R.D. 251, 261 (D. Md. 2008).