The defendant in a complex commercial dispute demanded that plaintiff search its ESI for all files that had the names of four construction projects. Am. Mun. Power, Inc. v. Voith Hydro, Inc. (S.D. Ohio, 6/4/18) (copy of full opinion below). These were the four projects underlying the law suit. Defense counsel, like many attorneys today, thought that they had magical powers when it comes to finding electronic evidence. They thought that all, or most all, of the ESI with these fairly common project names would be relevant or, at the very least, worth examining for relevance. As it turns out, defense counsel was very wrong, most of the docs with keyword hits were not relevant and the demand was unreasonable.
The Municipal Power opinion was written by Chief Magistrate Judge Elizabeth A. Preston Deavers of the Southern District Court of Ohio. She reached this conclusion based on evidence of burden, what we like to call the project metrics. We do not know the total evidence presented, but we do know that Judge Deavers was impressed by the estimate that the privilege review alone would cost the plaintiff between $100,000 – $125,000. I assume that estimate was based on a linear review of all relevant documents. That is very expensive to do right, especially in large, diverse data sets with high privilege and relevance prevalence. Triple and quadruple checks are common and are built into standard protocols.
Judge Deavers ruled against the defense on the four project names keywords request, and granted a protective order for the plaintiff because, in her words:
The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.
The plaintiff made its own excessive demand upon defendant to search its ESI using a long list of keywords, including Boolean logic. The plaintiff’s keyword list was much more sophisticated than the defendants four name search demand. The plaintiff’s proposal was rejected by the defendant and the judge for the same proportionality reason. It kind of looks like tit for tat with excessive demands on both sides. But, it is hard to say because the negotiations were apparently focused on mere guessed-keywords, instead of a process of testing and refining – evolved-tested keywords.
Defense counsel responded to the plaintiff’s keyword demands by presenting their own metrics of burden, including the projected costs of redaction of confidential customer information. These confidentiality concerns can be difficult, especially where you are required to redact. Better to agree upon an alternative procedure where you withhold the entire document and log them with a description. This can be a less expensive alternative to redaction.
When reading the opinion below note how the Plaintiff’s opposition to the demand to review all ESI with the four project names gave specific examples of types of documents (ESI) that would have the names on them and still have nothing whatsoever to do with the parties claims or defenses, the so called “false positives.” This is a very important exercise that should not be overlooked in any argument. I have seen some pretty terrible precision percentages, sometimes as low as two percent.
Get your hands in the digital mud. Go deep into TAR if you need to. It is where the time warps happen and we bend space and time to attain maximum efficiency. Our goal is to attain: (1) the highest possible review speeds (files per hr), both hybrid and human; (2) the highest precision (% of relevant docs); and, (3) the countervailing goal of total recall (% of relevant docs found). The recall goal is typically given the greatest weight, with emphasis on highly relevant. The question is how much greater weight to give recall and that depends on the total facts and circumstances of the doc review project.
In some simple projects it can still be effective, especially if the user is highly skilled and the data is simple. It also helps if the data is well known to the searcher from earlier projects. See TAR Course: 8th Class (Keyword and Linear Review).
Below is the unedited full opinion (very short). We look forward to more good opinions by Judge Deavers on e-discovery.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION. No. 2:17-cv-708
June 4, 2018
AMERICAN MUNICIPAL POWER, INC., Plaintiff, vs. VOITH HYDRO, INC., Defendant.
ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE. Judge Algenon L. Marbley.
MEMORANDUM OF DECISION
This matter came before the Court for a discovery conference on May 24, 2018. Counsel for both parties appeared and participated in the conference.
The parties provided extensive letter briefing regarding certain discovery disputes relating to the production of Electronically Stored Information (“ESI”) and other documents. Specifically, the parties’ dispute centers around two ESI-related issues: (1) the propriety of a single-word search by Project name proposed by Defendant Voith Hydro, Inc. (“Voith”) which it seeks to have applied to American Municipal Power, Inc.’s (“AMP”) ESI; 1 and (2) the propriety of AMP’s request that Voith run crafted search terms which AMP has proposed that are not limited to the Project’s name. 2 After careful consideration of the parties’ letter briefing and their arguments during the discovery conference, the Court concluded as follows:
- Voith’s single-word Project name search terms are over-inclusive. AMP’s position as the owner of the power-plant Projects puts it in a different situation than Voith in terms of how many ESI “hits” searching by Project name would return. As owner, AMP has stored millions of documents for more than a decade that contain the name of the Projects which refer to all kinds of matters unrelated to this case. Searching by Project name, therefore, would yield a significant amount of discovery that has no bearing on the construction of the power plants or Voith’s involvement in it, including but not limited to documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc. While searching by the individual Project’s name would yield extensive information related to the name of the Project, it would not necessarily bear on or be relevant to the construction of the four hydroelectric power plants, which are the subject of this litigation. AMP has demonstrated that using a single-word search by Project name would significantly increase the cost of discovery in this case, including a privilege review that would add $100,000 – $125,000 to its cost of production. The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.
- AMP’s request that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of common construction terms and the names of hydroelectric parts is overly inclusive and would yield confidential communications about other projects Voith performed for other customers. Voith employees work on and communicate regarding many customers at any one time. AMPs proposal to search terms limited to certain date ranges does not remedy the issue because those employees still would have sent and received communications about other projects during the times in which they were engaged in work related to AMP’s Projects. Similarly, AMP’s proposal to exclude the names of other customers’ project names with “AND NOT” phrases is unworkable because Voith cannot reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects. Voith has demonstrated that using the terms proposed by AMP without connecting them to the names of the Projects would return thousands of documents that are not related to this litigation. The burden on Voith of running AMP’s proposed search terms connected to the names of individual employees and general construction terms outweighs the possibility that the searches would generate hits that are relevant to this case. Moreover, running the searches AMP proposes would impose on Voith the substantial and expensive burden of manually reviewing the ESI page by page to ensure that it does not disclose confidential and sensitive information of other customers. The request is therefore overly burdensome and not proportional to the needs of the case.
1 Voith seeks to have AMP use the names of the four hydroelectric projects at issue in this case (Cannelton, Smithland, Willow and Meldahl) as standalone search terms without qualifiers across all of AMP’s ESI. AMP proposed and has begun collecting from searches with numerous multiple-word search terms using Boolean connectors. AMP did not include the name of each Project as a standalone term.
2 AMP contends that if Voith connects all its searches together with the Project name, it will not capture relevant internal-Voith ESI relating to the construction claims and defenses in the case. AMP asserts Voith may have some internal documents that relate to the construction projects that do not refer to the Project by name, and included three (3) emails with these criteria it had discovered as exemplars. AMP proposes that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of generic construction terms and the names of hydroelectric parts.
IT IS SO ORDERED.
DATED: June 4, 2018
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE