Archive: April 11, 2008

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Court Further Refines Search Protocol, Adds Search Terms and Orders Distinct Conjunctive and Disjunctive Keyword Searches
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Additional Information Needed Before Court Will Order Production of Email from Backup Sources

Court Further Refines Search Protocol, Adds Search Terms and Orders Distinct Conjunctive and Disjunctive Keyword Searches

ClearOne Communications, Inc. v. Chiang, 2008 WL 920336 (D. Utah Apr. 1, 2008)

This decision further refines the search protocol to be used to search data from computers used by certain defendants, which were imaged pursuant to two court orders issued in 2007.  The second imaging order sought to establish a protocol for searching the mirror images to identify relevant and responsive documents.  That protocol was refined in a November 5, 2007 order.  The protocol in place required keyword searches by technical experts; review of search result reports by defense counsel for facial claims of privilege; delivery of the reports to plaintiff’s counsel for preliminary assertion of responsiveness; defense counsel’s review for responsiveness and privilege; and delivery of documents and privilege logs.

The parties had agreed on many search terms.  Plaintiff had accepted, with five additions, the search terms proposed by defendants in September 2007.  The issue decided on this motion related to the five additional search terms proposed by plaintiff, and the conjunctive or disjunctive use of the terms in the searches to be conducted.

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Additional Information Needed Before Court Will Order Production of Email from Backup Sources

Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008)

Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights.  Plaintiff moved to compel the production of email between and among the parties, challenging the adequacy of defendants’ production.

Following oral argument on the motion, the court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails.  In response, defendants filed an affidavit of the Director of the DEC’s Division of Information Services.  Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources.  Although the director evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than 12 months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit did not address what efforts, if any, were employed to search for such emails from accessible sources.  For example, the affidavit did not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

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