eDiscovery Case of the Month to Watch

Custom Hardware Engineering & Consulting, Inc. and York v. Dowell, Pilling, and Smith (1/3/2012)

Location: Eastern Missouri

Background

SpotlightCustom Hardware provides computer hardware maintenance services by designing, implementing, and utilizing software programs and other exclusive data and information.

Dowell, Pilling, and Smith were former employees at Custom Hardware and the company says the three are bound by non-competition and non-disclosure agreements. Custom Hardware said these former employees violated these agreements when they allegedly formed TriPoint Development, Inc., a business that was allegedly in direct competition with Custom Hardware.

The company also claims the former employees formed TriPoint Development by illegally accessing, copying, and using computer software and data programming source code systems that belonged to Custom Hardware.

As a result, Plaintiff has sued Defendants for copyright infringement, trade secret misappropriation, breach of contract, breach of fiduciary duty, and other related claims.

Why it’s important

Because many elements of Custom Hardware’s accusations involved electronic evidence (software, source code systems), the defendants were ordered to have electronically stored information (ESI) on their computers discovered according to Ameriwood Industries, Inc. v. Liberman.

The precedent case outlined the ediscovery process in three steps:

1.      A forensic duplicate of the defendants’ computers is created by an expert chosen by both parties

2.      Defense receives searchable version of ESI

3.      Once received, the defense has 20 days to review and give to the plaintiff any ESI for privilege and responsiveness

Now here’s where the trouble started.

The first two steps were followed without a problem. But a disagreement popped up between the two parties during the last step. After the 20 days, the defendants received Custom Hardware’s motion to induce the ediscovery. But the defendants refused to play ball because they claimed Custom Hardware’s keyword terms were too broad.   In addition:

1.      The terms searched included frequently used words and phrases, giving an “unreasonable number of irrelevant results.” 

2. The terms would have brought about documents that were privileged. 

3. Some of the terms wouldn’t have produced relevant results. 

But the court disagreed with their objections and forced the parties to adhere to the original steps. Here was its reasoning:

1.      The defendant didn’t provide the court with any evidence to support the claim that the search would give “unreasonable number of irrelevant results” and there was no ability to support the objection.

2.      The defendants was given an option to create a “privilege log” that would have excluded privileged documents. But that action wasn’t taken and concern over disclosing privileged materials isn’t grounds to object.

3.      No evidence to support “irrelevant information” claim.

The defendants’ objections were born from the argument that the keyword terms Custom Hardware’s wanted to search were too general. The court answered the objection regarding keyword searching using the Sedona Conference:

“Keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English.” Effective keyword searching can only occur when keywords match “sometimes arbitrary choice of language to describe the targeted topic of interest.”

The take away

If you need to take a good look at search keywords, it’s simple: Involve a consultant to help plan a search methodology.

You can’t use baseless claims to change search terms. You must be ready to back up your claim with evidence that the terms aren’t reasonable. To ascertain that, you should use ediscovery analysis software or a consultant.

Projecting the rough costs of producing ESI with keyword terms should let the objecting side submit required evidence that courts look for in making the right decision with an objection.

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