“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”

New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, —Fed. Cl.—, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015)

In this breach of contract case, Plaintiff sought an order requiring Defendant to “redo its searches for responsive documents according to parameters to be agreed upon by the parties” after it began to suspect that Defendant’s search for responsive materials was insufficient.  The court found that Defendant “did not put into place a systematic, reliable plan to find and produce all relevant documents in this case” and indicated that the record did not “allow the court to conclude that a thorough and reliable search was conducted.”  Accordingly, the court ordered the parties to work together to identify a list of custodians, search protocols and search terms to be utilized by the defendant and required the defendant to maintain a careful record of its search efforts and to produce any responsive documents.

In this case, Plaintiff came to believe that Defendant’s discovery efforts were insufficient and filed its third motion to compel.  Among other things, Plaintiff sought to require Defendant to cooperate to identify custodians, search terms, and search protocols and to produce the documents identified in native format.  Court-ordered declarations from individuals who participated in Defendant’s discovery efforts revealed that Defendant’s litigation hold, which was implemented more than five months after litigation began, was sent to “certain agency offices” for further distribution to “relevant agency components.”  Out of 23 declarants, however, only 2 were aware of the litigation hold.  It was further revealed that Defendant provided search instructions, including the identification of 12 categories of documents to search for and 8 recommended search terms, but that those instructions were inconsistently followed and that there was “great variation in the methods and key words used in the searches.”  With regard to its allegedly insufficient productions, Defendant asserted that some relevant files may have been “lawfully destroyed” pursuant to its retention policy before the duty to preserve arose, but also indicated that some documents may have escaped destruction as the result of a different record hold.  With regard to a particularly relevant custodian, Defendant also alleged that despite destroying her personal hard drives following retirement (and despite a duty to preserve) it may nonetheless have produced all responsive documents because she had been required to (and stated that she had) save documents, including emails, to a shared drive from which documents were collected.

Turning to Plaintiff’s allegations of an insufficient search, the court instructed the parties that “[a] proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel” and that “Defendant must be able to ‘explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.’”

In the present case, the court found that Defendant failed to put a “systematic, reliable plan” in place to identify responsive documents and specifically noted that there appeared to be “little oversight by defendant’s counsel over the search efforts” of agency employees, including leaving employees with the discretion to determine search terms and failing to require custodians to keep a record of the terms used and what records they searched.

Unable to “conclude that a thorough and reliable search was conducted,” the court nonetheless acknowledged the possibility that all relevant documents in Defendant’s possession were identified and produced as a result of Defendant’s discovery efforts.  Despite this acknowledgment, the court ordered the parties to cooperate to “develop a list of custodians, search protocols, and search terms” within a time certain and ordered the defendant to “maintain a record of which custodians performed searches, what search terms they used, what records they searched, and how many responsive documents were found” and further ordered the production of all newly identified responsive documents in native format.

Pending the results of the additional searching, the court denied Plaintiff’s requests to reschedule and/or retake certain depositions and denied Plaintiff’s request for attorney’s fees and costs.

A copy of the court’s full opinion is available here.

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