[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]
A condominium, Trailsedge Owners Association, Inc., sued the developer, Blue Moon, and others alleging design and construction defects. It requested $10 million in damages.
The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s management agent.
This blog, however, addresses the search methodology issue and Blue Moon’s assertion that Trailsedge must search all current and former unit owners’ email and text messages. Trailsedge Owners Ass’n., Inc. v. NED Ski Associates, LLC, 2026 WL 2083546 (D. Vt. Jul. 16, 2026).
While the court rejected defendants’ untimely demand to use their search terms, it found gaps in plaintiff’s keywords and ordered broad disclosure. The court rejected defendants’ demand to search the ESI of all current and former unit owners over more than a decade. However, based on certain statements of plaintiff, it found that plaintiff had opened the door to additional unit owner disclosure, which was ordered by the court.
SEARCH METHODOLOGY
In my opinion, both parties were at fault when it came to search terms. Trailsedge decided on its keywords, unilaterally and without consultation. However, “Trailsedge argues that Blue Moon … never asked to negotiate search terms, and failed to propose its own terms until approximately two years later.” Id. at *3.
But, “[i]n reply, Blue Moon denies it acquiesced to Trailsedge’s unilateral search process, arguing it did not know Trailsedge had used keyword search terms until many months after the discovery production and was entitled to assume Trailsedge had produced all responsive materials…. Blue Moon also argues that the scope of the requested search is proportional because Trailsedge seeks damages exceeding $10 million for alleged defects dating back to the period when the buildings were constructed and occupied while refusing to identify the date range, custodians, and results of its searches.” Id. at *4.
The court looked to the Sedona Conference, id. at *4, passim, and Judge Peck’s decision in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), writing that “when a party uses keyword searches to identify responsive ESI, the search process must be cooperative, well-informed, capable of explanation, and sufficiently transparent to permit the opposing party and the court to evaluate it if challenged.” It wrote that cooperation and proportionality are the dominant drivers. “As Gross explained, keyword searches must be developed with input from custodians who know the terminology used in the relevant communications and must be tested to ensure accurate retrieval and reduce false positives.” Id. at *5.
The Trailsedge court continued: “Applying the principles described above to this case, the court first rejects Blue Moon’s request to impose its proposed keyword search” on Trailsedge. Id. at *5. It found that those terms may be overbroad, redundant, “or likely to generate excessive false positives.” Further, Blue Moon was untimely:
Sedona’s principles do not give a party license to wait until late in discovery and then demand a wholesale redo of its opposing party’s collection process using its preferred terms…. Trailsedge also notes that Blue Moon did not request search-term information or propose its own search terms until approximately two years later…. The timing and proportionality considerations weigh against granting Blue Moon’s request in full.
Id. at *5.
However, Trailsedge was not off the hook with its unilateral selection of keywords. It wrote that: “The court… also rejects Trailsedge’s argument that Blue Moon’s delay ends the inquiry. Trailsedge chose to use keyword searches as part of its collection process, and the reasonableness of that process became a fair subject of discovery once it was challenged.” Id. at *6.
Again citing Sedona and Judge Peck, the Trailsedge court noted “the more basic principle that counsel must understand, supervise, and be able to describe the search process used to identify responsive ESI in enough detail to assess its adequacy.” Id. at *6. Finding “apparent gaps” in the terms designed unilaterally by Trailsedge, the court wrote:
Trailsedge has not met its obligation to provide enough information to permit a meaningful assessment of whether the searches were reasonable and proportional. The record does not show that Trailsedge has identified the custodians searched, the date ranges applied, the dates the searches were conducted, the terms used for each custodian or source, or the results returned by each term…. Trailsedge must therefore provide additional information about its search methodology.
Id. at *6.
It added that Trailsedge’s “omission of central party names and words related to critical legal issues raises a sufficient question about the adequacy of Trailsedge’s prior search sufficient to warrant additional discovery.” Id.
Accordingly, within fourteen days, Trailsedge shall serve on Defendants a written description of its prior ESI search methodology. That description shall identify: (1) each custodian whose emails, text messages, or other ESI were searched; (2) each data source searched; (3) the date range applied to each search; (4) the date on which each search was performed; (5) the search terms used for each custodian or source; and (6) the number of hits returned by each term (to the extent reasonably available). Trailsedge shall also state whether custodians were instructed to use particular search terms, whether custodians self-selected additional terms, and what steps counsel took to supervise or validate the searches.
Id. at *6.
This was to be followed by a court-ordered “meet and confer.” Id.; see generally, the Hon. Paul W. Grimm (ret.), Michael D. Berman, et al., “Discovery about Discovery: Does the Attorney Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information,” 37 U. Balt. L. Rev. 413 (2008).
SEARCHES OF EVERY CURRENT AND FORMER UNIT OWNER
The court explained the unit owner issue as follows:
Blue Moon seeks an order requiring Trailsedge to collect and produce responsive documents from all current and former unit owners for the period of January 1, 2011 through May 12, 2023…. Blue Moon argues Trailsedge was required to search all unit owners’ files because Trailsedge “is suing on behalf of all unit owners” and because Trailsedge’s initial disclosures allegedly identified members, not just Board members, as persons likely to have discoverable information.
Id. at *7.
“Trailsedge responds that the Association is a Vermont nonprofit corporation distinct from its members and that the unit owners are not parties or custodians of Association records merely because they own units…. Trailsedge further argues that, except in limited governance matters, the Association acts through its executive board under the Vermont Nonprofit Corporation Act and that the Association’s statutory authority to litigate in its own name on behalf of itself or unit owners does not collapse the distinction between the Association and its members…. Trailsedge also argues that the request is disproportionate because Trailsedge consists of twenty-four units that have been bought and sold over the years by an unknown number of owners and Blue Moon seeks documents from January 1, 2011 through May 12, 2023.” Id. (emphasis added).
The court resolved the issue by applying the “possession, custody, and control” and proportionality standard of Fed.R.Civ.P. 34. “In the District of Vermont, ‘control’ is construed broadly and is not limited to legal ownership or actual physical possession; documents may be within a party’s control when the party has the ‘right, authority, or practical ability’ to obtain them.” Id. at *7.
It held that Blue Moon had the burden of proving control by Trailsedge and failed to carry it: “The record also does not support treating all unit owners as custodians simply because some unit owners may possess relevant information. Rule 34 control requires more than relevance.” Id. at *7. The court noted that the Sedona conference calls for “caution” in evaluating information in the possession of non-parties.
Rule 34 control requires more than relevance.
Trailsedge Owners Ass’n., Inc. v. NED Ski Associates, LLC, 2026 WL 2083546, at *7 (D. Vt. Jul. 16, 2026).
Although the [Sedona Conference] Commentary’s recommended “legal right” standard is narrower than the “practical ability” standard applied by district courts in the Second Circuit, it identifies generally applicable practical and fairness concerns implicated when discovery obligations are extended to ESI held by third parties. The Commentary explains that an expansive approach may require parties to preserve, search, and produce documents they do not actually possess and may not have the ability or legal right to obtain…. That concern is present here. Blue Moon has shown that unit-owner communications may be relevant, but it has not shown that Trailsedge has actual possession, legal authority, or a practical ability to obtain every current and former unit owner’s personal emails and text messages on demand.
Id. at *7 (emphasis added).
The court also evaluated proportionality: “The documents Blue Moon seeks may be relevant to notice, knowledge, and statute-of-limitations issues. Blue Moon’s requested owner-wide search, however, would encompass more than twelve years, cover all current and former owners of twenty-four units, and include potentially sensitive personal texts and emails.” Id. at *8.
However, Trailsedge was not off the hook. Its discovery responses “reasonably could have led Blue Moon to believe that at least some non-Board Association members had supplied documents or information.” Id. at *8. In my words, Trailsedge opened the door. Therefore:
In light of the ambiguity created by Trailsedge’s interrogatory responses, however, the court finds the responses require clarification. Rule 26(g) requires Trailsedge’s discovery responses to be formed after a reasonable inquiry, and Rule 26(e) requires supplementation if the responses were materially incomplete or incorrect. Fed. R. Civ. P. 26(e), (g). Because Trailsedge’s responses suggest that some member-produced materials were considered but do not identify which members provided documents, what sources were searched, or whether any non-Board member communications were requested or reviewed, Trailsedge must clarify those issues in the search-methodology disclosure ordered in the previous section. The disclosure shall state whether Trailsedge requested documents from any non-Board unit owners; identify any non-Board unit owners from whom Trailsedge obtained documents or information used in preparing its discovery responses or productions; identify the categories of documents obtained from those members; and certify whether Trailsedge has produced all responsive, nonprivileged documents from those member-provided materials that are within its possession, custody, or control.
Id. at *8.
For more on “possession, custody, and control,” see:
- Possession, Custody, or Control – Need for a Uniform National Standard – Part II;
- Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
