Keyword Hits + Overbroad Terms ≠ Duty to Produce

E-Discovery LLC By Michael Berman - Keyword Hits + Overbroad Terms ≠ Duty to Produce
Image: Holley Robinson, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Thanks to Sidley Austin for publishing a blog on Ravin Crossbows, LLC v. Hunter’s Manufacturing Company, Inc., 2024 WL 3253265 (E.D. Ohio July 1, 2024), August’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP (Aug. 21, 2024) and August’s Notable Cases and Events in E-Discovery – EDRM.

In Ravin Crossbows: “The parties are embroiled in a multi-year dispute, spanning two districts and two separate claim constructions, in which the plaintiff accuses the defendant of infringing several patents disclosing various crossbow configurations.”  2024 WL 3253265 at *1.

Sidley wrote that: “One of Defendant’s requests for production in discovery sought production of ‘all documents, things and [ESI] having any of the following keywords, including any misspellings,’ including 38 keywords mainly describing parts of a crossbow, Plaintiff’s technology, and certain [crossbow] inventors.” [emphasis added].

The Ravin Crossbows court wrote that the discovering party – – defendant TenPoint – –  later offered to reduce the number of terms from 38 to 26 and drop the request for misspellings.  2024 WL 3253265 at *2. 

In support of its requests, TenPoint cited Judge Grimm’s decision in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 256 (D. Md. 2008), for the proposition that keyword searches are “useful tools for search and retrieval of ESI.”  The producing party responded that this was a “fishing expedition” and duplicative of other requests. Id. at *2.

TenPoint’s request is not limited to a particular source, time, subject matter, or custodian. It asks for ‘all documents, things and electronically stored information’ containing any of the terms at issue.

Ravin Crossbows, LLC v. Hunter’s Manufacturing Company, Inc., 2024 WL 3253265, at *4 (E.D. Ohio July 1, 2024) (emphasis added).

In rejecting TenPoint’s position, the Ravin Crossbows court cited a different part of Judge Grimm’s Victor Stanley decision – – while keyword searches may be useful in some contexts, “there are well-known limitations and risks associated with them.” Victor Stanley, 250 F.R.D at 260.  One such risk is the tendency of keyword searches to produce results that are both overbroad and underinclusive, citing The Sedona Conference.  Id. at *3.

The Ravin Crossbows court also quoted the Hon. Andrew J. Peck’s decision in William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009):

“[W]here counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians…, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of ‘false positives.’”

William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009).

However, as Sidley notes, the Ravin Crossbows court wrote that: “Here, cooperation is non-existent. Nothing in the record indicates that the custodians worked together to identify appropriate terms or that any testing has been done to ensure TenPoint’s keywords would be effective search terms.”  2024 WL 3253265 at *3.

In 2009,  Judge Peck issued “a wake-up call” to the Bar “about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’….” Wm. A. Gross, 256 F.R.D. at 134.  Apparently that message did not reach TenPoint.

TenPoint’s  offer to reduce the number of keywords and drop the request for misspellings did not succeed.  Instead, the Ravin Crossbows court wrote that the offer “does not offer any narrowing criteria” and “[s]uch a request is flawed from the beginning. 2024 WL 3253265 (citation omitted).

There was another issue.  TenPoint asked for “all” documents.  The Ravin Crossbow court wrote that: “TenPoint’s request is not limited to a particular source, time, subject matter, or custodian. It asks for ‘all documents, things and electronically stored information’ containing any of the terms at issue.”  Id. at *4 (emphasis added).

“All” is a dangerous word in e-discovery.  Requests for “Any and All” Documents Are Obsolete – Update (Jul. 6, 2024); Discovery is the Lawyer’s X-Ray; However, an MRI May Not Be Reasonable (Sept. 4, 2024).

A better approach is to request “material” or “principal” ESI, or for ESI “sufficient to show” the sought after information.  See Requests for “Any and All” Documents Are Obsolete – Update; Requests for “Any and All” Documents Are Obsolete (Feb. 4, 2021).

On an issue related to the misuse of keywords in Ravin Crossbows – – specifically, whether all keyword “hits” in a “hit report” must be produced – – see  How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023); Hit Reports (Aug. 14, 2022); and 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024).

Thanks to Sidley Austin for its excellent monthly blog highlighting Ravin Crossbows.

Author

  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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