S.D. Ohio decision on search terms.

On June 4, 2018, Judge Elizabeth A. Preston Deavers issued an order in Am. Mun. Power v. Voith Hydro, Case No. 2:17-cv-708, 2018 U.S. Dist. LEXIS 93714 (S.D. Ohio June 4, 2018), settling a dispute between the parties on what terms should be used to search the Plaintiff's ESI.

The Defendant requested that the search of the AMP ESI and its own ESI be limited to the names of the four hydroelectric projects at issue in the case (Cannelton, Smithland, Willow and Meldahl). AMP wished to omit the project names and instead use multiple search terms (including employee names and terms specific to construction and hydroelectricity) with Boolean connectors.

Judge Deavers ruled that a search for the project names would be over-inclusive. A search for the project names would not necessarily be relevant to the construction of the dams and the cost of discovery would increase greatly including by more than $100K for privilege review. “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.” Id. at 3-4.

However the Court also found that AMP’s proposed terms would return a high amount of confidential data and be overboard and not proportional to the needs of the case. “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.” Id. at 4-5.

U.S. District Court Ruling on Searches of Minnesota Department Health Services Databases

Today, Judge Becky Thorson issued an order in Murphy v. Motions, Civ. No. 16-2623 (DWF/BRT) Civ. No. 16-2623 (DWF/BRT), 2018 U.S. Dist. LEXIS 93043 (D. Minn. June 4, 2018), ruling on both the Plaintiffs' motion to compel discovery, and the parties respective ESI proposals.

The Court denied the Plaintiffs' motion to compel a response to its interrogatory seeking the identity of individuals referenced in reports that are not specifically named. The reports are Bates stamped, DHSGOR0032379 to DHSGOR0032636, consisting of only 258 pages. The Court denied the motion citing, "Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534, 537 (D. Del.1962) ('[A] party is not required to make research or compilation of data except that within its own knowledge.')" Id. at 9. The defendants did not have the identities of the referenced people in its possession.

Judge Thorson did grant a motion to compel a search of the Defendant's databases for information on certain individuals. The defendant in the case is Commissioner of the Minnesota Department of Human Services. Its position that a database search would be burdensome and not proportional to the needs of the cases was rejected even thought it contended that each search could take between 10 to 120 minutes because of the need to review files manually. The Court noted that it had already ordered a database search for other individuals: "Since Defendant will be searching the SSIS database anyway, it is not unduly burdensome to add a search relating to these 42 individuals. Indeed, there may be overlap between the individuals identified in Interrogatory No. 6(c) and Document Request No.43(e)." Id. at *16-17. The order instructs that the database search method be included in the ESI protocol.

The Plaintiffs tried to add search terms and sources to a new ESI Protocol for its requests despite the fact that a previous order had specified search terms and sources (which include SharePoint, a CRM database, and network drives). The Plaintiffs failed to indicate why the previously agreed upon search terms did not find the documents sought by the new request, or propose new search terms. Judge Thorson held that, "A do-over search of electronic discovery sources is overly burdensome. However, the results of the previous searches should be further examined to determine if the pool of documents includes discoverable documents now responsive to Plaintiffs' January 30, 2018 requests." Id. at *28. She ordered the parties meet and confer to find new search terms, and if they could not come to an agreement to file a joint submission. (The parties have not been given a lot of time - a new protocol is due by Friday, June 8).

Neither party raised the possibility of sampling database sources, so Judge Thorson suggested in her order that sampling be performed for new data sources.

Judge Thorson did not fault the Plaintiffs for using their own search terms to search for responsive documents, in addition to other methods, instead of negotiating terms with the Defendant.

District of Colorado on the Taxation of Costs: Load Files and FTP Uploads Are Included!

On May 25, 2018, Judge R. Brooke Jackson issued a decision in Johns Manville Corp. v. Knauf Insulation, LLC, 15-cv-00531-RBJ-KLM, 2018 U.S. Dist. LEXIS 88189 (D. Colo. May 25, 2018), granting in part and denying in part a motion for review of the exclusion of electronic discovery costs to the defendants. Knauf Insulation was the prevailing party in the case. The clerk only awarded $23,963.77 of the $253,883.05 in e-discovery costs that the defendant had requested.

The defendant argued that the clerk had incorrectly assessed the which ESI services should be 'taxed' - under 28 U.S.C. § 1920(4), which allows the clerk to tax "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case". [The taxation of costs can be confusing concept. To be clear see this definition by Lexis, "Taxation of costs is the procedure by which the court assesses the amount of costs payable under a costs order by the paying party to the receiving party (generally the winning party)."

It was uncontested in this case that § 1920(4) should cover the costs of scanning and conversion to the TIFF and PDF image formats. Judge Jackson cited the well known 3rd Circuit decision in Race Tires v. Hoosier which specified that scanning and image conversion costs could be recovered under § 1920(4). See the Tip of the Night for February 12, 2017. She disagreed that costs categorized by Knauf as "collecting, importing, and processing ESI", and described as "the cost of initially uploading data," and "the amount spent on loading data into an electronic database", should be covered by § 1920(4). Id. at *10. "[T]he nature and purpose of these costs requires a certain amount of technical expertise, and Knauf provides no evidence or even a convincing explanation as to how these services are part of the actual making of copies.Rather, its argument essentially amounts to ipse dixit —it is so because Knauf says that it is so. That isn't good enough." Ibid. She also rejected the argument that fees for OCR conversion performed in response to the request to run keyword searches should fall under §1920(4).

Judge Jackson did however allow for the taxation of costs for the preparation of load files and 'FTP uploading'.

Notably, the defendant was further awarded an additional $31,786.94 in costs under Colo. Rev. Stat. § 13-17-202. This state statute allows for costs incurred after a settlement offer has been made and rejected.