[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024), applied principles enunciated by the Hon. Andrew J. Peck under the supervision of the court-appointed Special Master, Philip Favro.
The parties’ dispute centered on search queries. Defendant asserted that plaintiff’s queries were over broad, excessive in number, and resulted in high hit counts. Plaintiff retorted that not only were they reasonable, he had recently modified them to address defendant’s concerns.
In response to various questions from Mr. Favro, it became apparent that the Parties had not adequately tested the accuracy of Plaintiff’s search terms.
Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024).
The court responded that it “has made clear many times, ‘saying so does not make it so.’” [citation omitted].
Instead, the court relied on Phil’s substantial expertise, noting: “In response to various questions from Mr. Favro, it became apparent that the Parties had not adequately tested the accuracy of Plaintiff’s search terms.”
The Rayome court noted that search terms have known limitations and then turned to Judge Peck’s decision:
The quality control measures that Parties may consider to address these limitations include, among other things, sampling and testing the search terms to determine whether they are actually returning relevant documents. See William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). These iterative measures, together with the sharing of responsive metrics corresponding to the sampled and reviewed documents, can help Parties identify responsive ESI in a more proportional manner. From the Court’s experience, this is a far more effective manner than having the Parties merely arguing that search terms are or are not proportional to the needs of the case.
Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024).
The Rayome court then ordered:
[T]he Parties are hereby directed to continue their meet and confer, with Plaintiff and Defendant determining the precise number of search queries that remain in dispute. If there are more than 10 disputed search queries, the Parties shall jointly select five of those queries for further examination. Defendant shall first take a sample of the hit counts from those five queries, review the respective samples for responsiveness, provide review metrics on the number of responsive and nonresponsive documents of each sample to Plaintiff, and meet and confer with Plaintiff regarding what changes (if any) are needed to the search terms. To the extent changes are required to ensure the search terms more effectively and proportionally target relevant information, the Parties shall apply any criteria developed from this first tranche of search queries to the balance of the disputed search queries.
Rayome v. ABT Electronics, Inc., 2024 WL 4296755 (N.D. Ill. Sept. 24, 2024).
Recognizing the value of the Special Master, the court added: “The Parties are hereby ordered to include Mr. Favro in this process in order to better ensure the just, speedy, and inexpensive disposition of these disputes…. The Special Master shall review such documents as he deems appropriate and take measures that he determines are appropriate to perform his duties effectively and promptly, and he and shall serve and file a copy of any reports, orders, and so forth on the Parties’ counsel and the Court…. The Special Master may communicate ex parte with the Court in connection with scheduling and procedural matters, but may not do so with the parties or their counsel.” [emphasis added].
In a case where I was the Court Appointed ESI Discovery Supervisor for ESI Protocol (Sept. 13, 2024), an ESI Protocol was negotiated using a mediation-type of framework.
A decision of the Hon. Paul W. Grimm, Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), sets the framework for a defensible keyword search. See Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching (May 29, 2022).
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