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December 28, 2016 Practice Points

What Happens When Parties Cannot Agree on Search Terms for ESI Production?

Cooperation is best for both parties.

By Angela S. Fetcher

Courts have long held the power to grant a motion to compel the production of documents when there is a discovery dispute. However, as a recent federal decision highlights, courts may now also grant motions to compel a party to search for certain search terms for the production of electronically stored information (ESI) responsive to requests for production of documents if the parties fail to reach an agreement on search terms.

In Venturedyne, Ltd. v. Carbonyx, Inc., Case No. 2:14-CV-351-RL-JEM (N.D. Ind. Nov. 15, 2016), Venturedyne served requests for production of documents to Carbonyx, including requests for the production of certain ESI. Carbonyx objected to the requests on relevance grounds and refused to turn over any documents or ESI. Counsel for the parties spoke and eventually worked to negotiate an agreed-upon list of ESI search terms. Venturedyne initially proposed a list of 126 search terms. Carbonyx stuck 20 of the proposed search terms, and Venturedyne voluntarily removed an additional 28 terms, leaving 78 search terms to which there was no objection. However, no final agreement was ultimately reached, and Carbonyx’s attorney failed to respond to five emails from Venturedyne’s attorney. Venturedyne then moved to compel.

In its decision, the court emphasized that the production of ESI requires cooperation between the parties and their attorneys. The court found that while Carbonyx had the opportunity to limit the search terms at issue in this case, “Carbonyx’s refusal to participate in [the search term negotiation] process now requires that the Court intercede.” The court ultimately held that Carbonyx must produce documents responsive to the 78 unopposed search terms.

The Venturedyne decisions thus serves as an important reminder that if parties are not able to work together cooperatively to come to an agreed set of search terms for the production of ESI, the Court can and will do it for them—which may increase the burden in both time and cost to the parties.

Angela S. Fetcher is an attorney with Stoll Keenon Ogden PLLC in Louisville, Kentucky.

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