This past Friday, Judge Greg Kays issued a decision in Shannon v. Honeywell Fed. Mfg. & Techs., LLC, No. 4:17-CV-00787-DGK, 2018 U.S. Dist. LEXIS 121493 (W.D. Mo. July 20, 2018) granting the Plaintiff's request for new search terms. The Plaintiff sued his employer for discrimination on the basis of age, gender and race. The parties were not able to reach an agreement on how to search the Defendants' ESI An initial search resulted in 2,484 hits, but only 12 unique responsive documents.
The Plaintiff's motion to compel proposed additional search terms, but the Defendants objected on the basis of proportionality, under Fed. R. Civ. P. 26(b). The main difference in the terms used for the Plaintiffs' new search was that they used OR Boolean connectors rather than AND connectors between many terms. A search was to be run for the Plaintiff's first name OR his last name, rather than searching for when the names occur within 3 words of one another. The Plaintiff submitted an email as an exhibit to his motion in which he was referred to only by his first name. The Court ruled that Plaintiff's proposed terms were proportional to the needs of the case.
Given the Plaintiff's estimate of $100,000 in damages, Judge Kays found that the estimated cost of review with the proposed terms of $23,000 would be proportional to the needs of the case. He also took into consideration that the Defendants had sole access to their ESI and possessed the resources to search it, and believed the Plaintiff had demonstrated that his terms would likely find responsive documentation.
The Court rejected the Plaintiff's contention that it was unreasonable to believe that only 12 unique responsive documents could be found in the 2,484 hits from the initial search. Judge Kays reviewed a sample of false hits provided by the Defendants, and noted many clearly irrelevant emails contained search terms such as 'lawsuit'.
"Considering the sample of false hits provided by Defendants, it is understandable how a search with a large number of hits produced a few number of documents." Id. at 7. The Court declined to order a review of the initial search results.