September 29, 2018 Practice Points

In a Battle over Search Strings, Parties Must Confer About and Brief All of Them

Don't exasperate the court.

By Andrew M. Toft

Hall v. Rent-A-Center, Inc., Civ. Action No. 16CV978 (E.D. TX, Sherman Div., Aug. 31, 2018), is an example of parties seemingly working together to resolve discovery disputes, narrowing the issues, but still requiring court management of the discovery process when cooperation turns into impasse.

Hall is a securities-calls action under certain provisions of the Securities Exchange Act of 1934 and SEC Rule 10b-5. The parties proposed and the court adopted a deadline for substantial completion of document discovery and shortly thereafter the plaintiffs served their first set of requests for production. A month later, the defendants served their responses and objections. The parties then began a long process of negotiations regarding the relevant time period, the appropriate custodians, and search terms. Four months after service of the requests for production and fewer than three months prior to the substantial-completion deadline, the parties had reached agreement on the time period and custodians but not the appropriate search terms. Negotiations continued, but a month prior to the substantial completion, the plaintiff claimed the parties had reached an impasse. The plaintiffs proposed 174 search strings and the defendants agreed to run 111, claiming that the producing documents based on the remaining 63 search strings would be unreasonable and unduly burdensome. The plaintiff filed a motion to compel the defendants to run the other 63 search strings, claiming that the disputed strings tracked the allegations of the complaint and were relevant, proportional, and not duplicative. Oddly, while the plaintiffs listed all 63 of the disputed search strings in an exhibit, they specifically addressed only four of them in their briefing.

The court discussed the legal standards for discovery under Rule 26(b)(1), addressing relevance, the allocation of burdens, proportionality, and what showings the parties must make in a discovery dispute to carry their burdens and successfully prosecute or defend a motion to compel. The court then turned to the 63 disputed search strings.

While the plaintiffs were asking the court to compel the defendants to run the 63 disputed strings, the plaintiffs entirely failed to address 13 search strings in their motion or in their reply despite the fact that the defendants had addressed the 13 strings in their response to the motion to compel. The court easily denied the plaintiffs’ motion as to those 13 strings. Even more curiously, both the plaintiffs and the defendants failed to specifically address 46 search strings in their pleadings. The court ordered the parties to further meet and confer and directed the plaintiffs to later file a motion to compel only as to those search strings that remained in dispute after further meet-and-confer. After reviewing the four search strings specifically addressed by both parties, the court granted the motion to compel as to three of them and modified the remaining search string to address the defendants’ proportionality requirements.

If an attorney is going to file a motion to compel, the attorney should specifically address all aspects of the discovery to which the attorney wants a response. While the Hall court essentially gave the plaintiffs another bite at the apple despite the plaintiffs’ failure to establish even the relevance of 46 search strings, other courts may not be so charitable. Failing to address search strings addressed by the party responding to a motion to compel may exasperate other courts as well.

 

Andrew M. Toft is an attorney in Denver, Colorado.


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