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.