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Case Law Alert: Phased E-Discovery Approach Endorsed by the Court

Created on October 22, 2021


Vice President, E-Discovery

As the amount of data that organizations create and store continues to grow, it’s imperative that legal teams align their e-discovery techniques with the principle of proportionality. As seen in Huntsman v. Southwest Airlines Co., 2021 WL 3504154 (N.D. Cal. August 10, 2021), using a phased discovery approach is not only proportional, but also fits with the court rules for conducting a “reasonable inquiry.”

Overview

In this class action lawsuit based on the violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, the parties had numerous e-discovery disputes that they brought to the court’s attention, specifically in relation to the plaintiff’s production requests.

During e-discovery, the plaintiff requested a wide variety of communications (i.e., defendant’s participation in any meeting with the government), which the plaintiff contended were relevant if defendant’s employees’ military leave was discussed. The defendant objected, stating that the request was unduly burdensome, overly broad, and not proportional to the needs of the case. However, the defendant was open to conducting a phased search methodology around the discovery of these documents.

Regarding this phased approach, the parties disagreed on whether to use keyword search terms to limit the scope of discovery.

Ruling

  • Court Denies Plaintiff’s Production Request but Approves Phased Discovery Approach. The court approved the defendant’s phased discovery approach which included a combination of technology assisted review and keyword searches.
  • Phased Discovery Approach = “Reasonable Inquiry”. The magistrate judge went on to state that a phased discovery approach “does not offend the court’s expectation that the parties conduct a reasonable inquiry as required by the rules.”

Expert Opinion by David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

Judge Hamilton’s ruling that it was appropriate to use key word culling prior to TAR accords with most past precedents addressing that issue. Starting with search term culling reduces costs, streamlines TAR training, and satisifies the principle that TAR should not be held to a higher standard than human review.

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.