Electronic Discovery Law
Court Selects Search Terms and Sets Out Detailed Electronic Discovery Protocol in Light of Parties' Inability to Collaborate
The court in this wrongful death case had previously held a hearing on outstanding discovery issues, and had directed each party to submit a proposed protocol to govern electronic discovery in the case. Based on the parties' filings, their representations during the hearing, as well as their submissions of electronic discovery protocols, the court entered this order resolving a variety of discovery disputes.
On the subject of electronic discovery, the court noted that a number of issues had arisen with respect to Taser's search of electronic databases of internal communications. In particular, the parties substantially disagreed about the manner in which the searches for responsive documents contained within these databases were to be performed. The disagreement focused in large part on the timing of that production, the specific search terms to be used, and the extent to which plaintiffs would be allowed to participate in the search process.
Plaintiffs, for their part, requested that they be permitted to actively participate in the search process at the Taser facility. Under plaintiffs' proposal, Taser would make a computer with multiple screens available at its facilities, where plaintiffs' counsel would appear and provide search requests to the Taser representative actually performing the database searches. The results of each of plaintiffs' requested searches would be immediately reviewed for privilege, and plaintiffs would then be provided access to any documents returned and to which no privilege objection was asserted.
Defendants adamantly opposed plaintiffs' proposal, contending that plaintiffs' counsel need not be present at Taser's facilities, that their presence would both substantially hinder Taser's ongoing business activities and risk the disclosure of privileged information. Taser instead proposed that search terms be exchanged between the parties by email. Taser would then perform the searches using the stated terms, and report the number of documents retrieved to plaintiffs, who would then have the opportunity to either accept the search or propose different search terms. If both parties accepted a given search, Taser would then review the documents produced for privilege and produce all responsive, non-privileged documents. If, however, the parties disputed whether a given search was acceptable, then either could apply to the court for review, and all searches would cease until the court rendered a decision.
The court found both proposals deficient. Given the parties' history in this case, and their demonstrated inability to work together reasonably in an effort to resolve discovery disputes, the court stated it would not compel the parties to collaborate in the dynamic manner suggested by plaintiffs. Further, the court stated it similarly would not require the production to proceed in the manner Taser proposed, which likewise invited dispute and additional delay. Instead, the court set its own protocol and ordered the production of electronic documents and communications to proceed in the following manner:
1. Taser will conduct, at a minimum, searches of its email database using following terms:
B) “cardiac” OR “respiratory”
D) “in-custody death”
E) “pre-existing” within 10 words of “condition”
F) “pre-existing” within 10 words of “health”
G) “Frederick” OR “Williams”
H) “safe* ” within same sentence as “X26”
I) “safe* ” within same sentence as “M26”
J) “epilep* ”
K) “mental* ” within 5 words of “ill* ”
L) “mental* ” within 5 words of “condition”
M) “continu* ” within 10 words of “discharg* ”
N) “repeat* within 10 words of “discharg* ”
O) “multipl* ” within 10 words of “discharg* ”
P) “continu* ” within 10 words of “expos* ”
Q) “repeat* within 10 words of “expos* ”
R) “multipl* ” within 10 words of “expos* ”
S) “chest” within same sentence as “discharg* ”
T) “caus* ” within same sentence as “death”
U) “contribut* within same sentence as “death”
These searches will create a universe of presumptively responsive documents. From those presumptively responsive documents, Taser may search for and preliminarily withhold as presumptively privileged any communications between counsel and corporate principals or upper management, provided however that the presumption of privilege shall not apply to any communications also disclosed to opposing counsel in any litigation, or where any other action has been taken with respect to those communications which would result in the waiver of any claim of attorney-client privilege or work product protection. The Court will leave it to Taser to design the protocol it wishes to use to identify presumptively privileged documents. However, Taser shall provide Plaintiffs with a complete description of the protocol utilized.
3. Taser shall produce to Plaintiffs all presumptively responsive documents, less any presumptively privileged documents, not later than thirty (30) days from the entry of this Order. Taser may, however, review for privilege any presumptively responsive documents prior to their production. If, after conducting that review, Taser should believe that the attorney-client privilege or work product protection applies to any document, then Taser may withhold that document subject to Taser's obligation to provide a privilege log which complies fully with the requirements of Rule 26(b)(5)(A).
4. Taser shall review all presumptively privileged documents and produce, on a rolling basis, any documents within this category to which the attorney-client privilege or work product protection does not apply. For any presumptively privileged documents not so produced, Taser shall provide a privilege log which complies fully with the requirements of Rule 26(b)(5)(A). Taser's production of such documents shall be completed not later than forty-five (45) days from the entry of this Order.
5. Any documents produced pursuant to this Order shall be considered confidential and subject to the Protective Order  which governs this case. Paragraph 2 of that Order is hereby modified to apply to any documents or communications produced pursuant to this Order.
6. Any documents produced pursuant to this Order shall be subject to the “clawback provision” set forth in Part III.B of this Order, infra.
7. Taser 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.
8. All documents produced pursuant to this Order shall be made available to Plaintiffs in a searchable, electronic form.
9. The parties may, by mutual agreement, develop and employ search protocols which vary from those set forth above. In the absence of such agreement, however, production shall proceed in the manner described above.
10. If, upon completion of the production described above, Plaintiffs believe that an additional search of Taser's Email database is warranted, the Plaintiffs may raise that issue with the Court at the appropriate time.
The court stated that it recognized that the production would likely impose burdens on both parties – Taser would likely be required to significantly increase its privilege review capabilities, and plaintiffs would likely be required to wade through a significant number of documents. “Nevertheless, this case has been ongoing for more than 18 months, and yet discovery has progressed little and we remain far from its resolution. Because that is the case, and because the parties have been unable to cooperate in the discovery process, the Court is compelled to Order the discovery procedures set forth above.”
Recognizing that the production of documents in the manner ordered carried with it a risk that certain, otherwise privileged documents would be produced inadvertently, the court included a “clawback provision” in its order, which specifically provided:
1. The inadvertent production of any document or other information during discovery in this action shall be without prejudice to any claim that such material is protected by any legally cognizable privilege or evidentiary protection including, but not limited to, the attorney-client privilege or the work product doctrine, and no party shall be held to have waived any rights by such inadvertent production.
2. Upon written notice of an unintentional production by the producing party or oral notice if notice must be delivered at a deposition, the receiving party must promptly return or destroy the specified document and any hard copies the receiving party has and may not use or disclose the information until the privilege claim has been resolved. To the extent that the producing party insists on the return or destruction of electronic copies, rather than disabling the documents from further use or otherwise rendering them inaccessible to the receiving party, the producing party shall bear the costs of the return or destruction of such electronic copies.
3. To the extent that the information contained in a document subject to a claim has already been used in or described in other documents generated or maintained by the receiving party, then the receiving party will sequester such documents until the claim has been resolved. If the receiving party disclosed the specified information before being notified of its inadvertent production, it must take reasonable steps to retrieve it. The producing party shall preserve the specified information until the claim is resolved.
4. The receiving party shall have ten (10) days from receipt of notification of the inadvertent production to determine in good faith whether to contest such claim and to notify the producing party in writing of an objection to the claim of privilege and the grounds for that objection.
5. The producing party will then have ten (10) days from the receipt of the objection notice to submit the specified information to the Court under seal for a determination of the claim and will provide the Court with the grounds for the asserted privilege or protection. Any party may request expedited treatment of any request for the Court's determination of the claim.
6. Upon a determination by the Court that the specified information is protected by the applicable privilege, and if the specified information has been sequestered rather than returned or destroyed, the specified information shall be returned or destroyed.
7. Upon a determination by the Court that the specified information is not protected by the applicable privilege, the producing party shall bear the costs of placing the information into any programs or databases from which it was removed or destroyed and render accessible any documents that were disabled or rendered inaccessible, unless otherwise ordered by the Court.
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