November 30, 2016 Practice Points

Parties Must Meet and Confer Regarding ESI Search Terms

The Western District of Pennsylvania recently added some clarity to the matter.

By Kenneth J. Duvall

By now, electronically stored information (ESI) is no longer a novel aspect of discovery, or simply a supplemental means to traditional hard-copy document review. As such, the rules about the discovery process vis-à-vis ESI are coming into better focus every month.

Recently, the Western District of Pennsylvania added some clarity to the question of whether a party requesting ESI is required to meet and confer with opposing counsel regarding proper search terms. Pyle v. Selective Insurance Company of America, No. 2:16-cv-355 (W.D. Penn. September 30, 2016). The court's answer was unequivocal: yes. While the ruling partially rested on a local rule that may or may not have an analog in your jurisdiction, the ruling also rested on Fed. R. Civ. P. 26(f)(3)(C), which requires counsel to meet and confer about ESI issues.

The plaintiff had run afoul of this rule by refusing to provide search terms to the defendant after requesting ESI in a request for production. The defendant was forced to file a motion to compel the plaintiff to provide ESI search terms, which the court granted.

Counsel should be aware that the determination of proper ESI search terms remains a two-way street, though, just like any meet-and-confer process. See In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 662–64 (M.D. Fla. 2007) (sanctioning producing party for failing to discuss search terms with opposing counsel and undertaking "the task in secret").

Thus, whether you are the party seeking or responding to ESI discovery, you should be prepared to meet and confer regarding the appropriate search terms. Otherwise, you proceed at your own risk.

Kenneth J. Duvall is with Bilzin Sumberg Price & Axelrod LLP in Miami, Florida.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).