Discontent with Initial E-Discovery Production of Text Messages and Calendar Entries Leads to Motion

In re Diisocyanates Antitrust Litigation

W.D. Pa. 1/26/23 8:00

Why This Case Is Important

With e-discovery requests including unique items like text messages and calendar entries, parties must be able to collect this data easily and accurately project the costs of that collection and processing to ensure their demands are proportional to the matter being litigated.

Overview

In this antitrust case, the plaintiffs brought a motion to compel the defendants to produce hundreds of thousands of additional calendar entries and text messages.

During an extensive discovery process, the plaintiffs moved to compel the production of text messages and full sets of calendar entries from 45 custodians of three Defendants over a five-year period.

The defendants’ initial production resulted in more than 50,000 calendar entries and 5,000 text messages after applying search terms. However, the plaintiffs moved to compel the production of more than 350,000 calendar entries and 750,000 text messages that defendants reported returned no hits under the relevant search criteria.

Since the parties failed to reach agreement on additional production terms, plaintiff filed their motion to compel production.

Ruling

• Motion to Compel Denied. The court denied the plaintiffs’ motion to compel. The court noted that the parties had agreed to a stipulated ESI protocol setting out search terms for the parties’ initial disclosures and providing for a process for limiting future production requests, and this protocol did not exclude calendar entries or text messages.
• ESI Discovery Stipulations Honored. The court emphasized that the use of search terms to cull large document productions is routine and acceptable, particularly in complex cases. However, the plaintiffs’ motion for wholesale production of documents would certainly yield significant amounts of irrelevant material disproportionate to the needs of the case. Furthermore, “the burden or expense of re-reviewing the entire universe of calendar entries and text messages sans search terms” did not outweigh its likely benefit.
• Potential Motions to Come. The court found that the use of search terms was routine and acceptable and that defendants’ search terms and search methodologies were not shown to be unreasonable or inadequate. However, the court advised plaintiffs they could issue discovery requests that are “non-cumulative, specifically targeted and not generalized, and [are] informed by the documents and other information produced to plaintiffs thus far.”
   

Legal Analysis

By, Hon. Andrew Peck (Ret.), Sr. Counsel, DLA Piper

The key lesson is that courts will hold parties to what they agreed to in their ESI protocol. Here, it was using keywords to review text messages and calendar entries. Moreover, the fact that keywords might miss relevant ESI did not persuade the court to require linear review, stating “search term methodologies are routinely used.” So be careful what you agree to in a protocol.