• March 31, 2010

The linked order from U.S. Mag. Judge Janie S. Mayeron (D. Minn.) may be useful for Minnesota litigators to get a feel for how litigants and the Court approach requests for large amounts of electronically stored information (ESI).  

In this large-scale litigation against the National Arbitration Forum, plaintiffs and defendants Accretive/Agora are to devise a list of “search terms.”  They are given 15 days for that.  If they cannot agree to a list, they submit “dueling lists” to the court.

A search “shall be conducted” and, after de-duplication, defendants will produce responsive non-privileged documents on a rolling basis about two weeks later.

In the mean time, defendant Accretive was ordered to send a “written questionnaire” to their “custodians,” including those no longer employed by Accretive, attaching discovery requests and basically asking them to identify where they stored responsive emails and documents.  Responses are required four days later (March 31, 2010 in fact).  (Query: if you send your former employee a questionnaire asking him or her to identify where files were kept, what would your response rate look like in four days?) (Query: why does the Court not distinguish between paper files and electronic files?)

Then, two weeks later, defendant Accretive is order to “provide to plaintiffs the number of emails and documents contained in each custodian’s folders identified by that custodian as likely to contain” responsive documents and emails.

“On receipt of that information, if plaintiffs still seek to have Accretive manually search any or all of the custodians’ folders any or all of the custodians’ folders for responsive documents, plaintiffs may raise that issue again first with Accretive, and then with this Court, if Accretive will not agree to their request for a manual search for responsive documents.”  (Query: what is “manual” search of ESI? Is this not a recipe for a game of blind man’s bluff where plaintiffs will be told, “we have # files from Custodian A, and # files from Custodian B” and, based on that, they are supposed to decide whose files should be “manually searched”?)

None of the parenthetical questions should be interpreted as critical of the Court-facilitated process.  After all, counsel for the parties worked with the Court in devising it.  Furthmore, Minnesota Litigator is not privy to the details or particulars, of course.  On the other hand, it may be fair to say that discovery of ESI is a “work-in-process” and it may be some time before a comprehensive and clear methodology is widely practiced.

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