How to Get an eDiscovery Evidentiary Hearing | Bow Tie Law's Blog 7/29/18, 2)46 PM

How to Get an eDiscovery

Evidentiary Hearing
Posted on April 6, 2012

Judge David Waxse waded into a case

that highlighted issues in parties not
cooperating and possible inadequate
preservation, search and production of
ESI. Chura v. Delmar Gardens of
Lenexa, Inc., 2012 U.S. Dist. LEXIS
36893, 7-8 (D. Kan. Mar. 20, 2012).

The litigation involved an employment

dispute with claims of sexual
harassment, hostile work environment
and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery

requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce

information from 10 individuals identified by the Defendants with knowledge
of the facts in the lawsuit. Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel
files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written

complaints, any emails or phone logs, the investigation files, and their
personnel files.” Chura, at *4. The production also lacked ESI one would

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normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’

allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a
result of Plaintiffs’ complaints about the alleged harasser and the environment at
the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director
or facility administrator regarding their investigation; complaints by the
Plaintiffs; complete wage payment records; performance appraisals; or
witness statements. Chura, at *5-6. As the Plaintiffs argued and Court
recounted:

It does not make any sense that in response to numerous complaints from
employees about the work environment that a corporate human resources
manager would be sent to investigate and not create a single document reporting
her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information
besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the
complaints had no email, correspondence of other reports. Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply

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running an Outlook search on the

alleged harasser’s computer. Chura, at
*7.

The Court ordered the following

evidentiary hearing over the discovery
dispute:

Based upon the limited information

provided in the parties’ briefing, the
Court cannot determine whether
Defendant met its duty to both preserve
relevant evidence or conduct a reasonable search for ESI responsive to Request
No. 1. It is unclear what actions Defendant undertook in order to preserve and
search for ESI responsive to Request No. 1. The Court finds that Defendant’s
failure to produce any ESI, such as emails, attachments, exhibits, and word
processing documents, raises justifiable concerns that Defendant may have 1)
failed to preserve relevant evidence, or 2) failed to conduct a reasonable search
for ESI responsive to the discovery requests.n5 The Court will therefore set an
evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI
responsive to Plaintiffs’ interrogatories and requests for production. Based on the
evidence presented at the hearing, the Court will determine whether Defendant
made reasonable efforts to preserve relevant evidence and search its computer
systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the

sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

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There are many attorneys that have a difficult concept with searching for
electronically stored information. I have met some who consider “search”
merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to
define “liberty.” There are many forms of “searching” and it is important to
understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system

to identify custodians, date ranges and other determining information to
identify ESI for preservation. This ESI can then exported out for analysis in an
“early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a

strategic collection methodology that can be defended in court. This can
include preserving the information with target search technologies to find
relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a
product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit
Terabytes of data may want to “search” the dataset with a “computer-assisted
review” application, such as OrcaTec’s Document Decisioning Suite. There are
several products on the market that can “learn” from a reviewing attorney and
identify relevant other relevant ESI based off the attorney’s relevancy
determinations.

The actual review of electronically stored information often requires running

search terms across ESI based off a propounding party’s discovery requests.
All litigation support review platforms have basic search technology, in
addition to different advanced analytical tools.

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For example, XERA from iConect can identify relationships between email
messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges,

however, there is still a huge “search” problem in the preservation and
production stages of a lawsuit. Many of these issues can be resolved by using
the right technology by people with knowledge on how to use the technology
correctly. The right technology will differ case to case, which only highlights
the need for lawyers to work with consultants who understand eDiscovery
tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned

in this post and friends at each organization).

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