June 22, 2023

Volume XIII, Number 173

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Statutory Discovery Obligations Should be Considered In Tandem With Protocol Particulars

A 2022 case out of the Southern District of New York discussed the affirmative discovery obligations imposed upon parties under Federal Rules of Civil Procedure 26 and 34 when conducting electronically stored information (ESI) searches and determining the identities of custodians and locations of relevant documents or information. Specifically, the court observed that any agreement regarding keyword search terms should work “in tandem” with the responding party’s independent obligations to produce documents that are “reasonably accessible, relevant, and responsive within the meaning of Rule 34.”

In this trademark infringement case, the parties were unable to reach an agreement on search obligations set forth in their proposed ESI protocol. And so, the court intervened and concluded defendant’s proposed language regarding search obligations in the protocol was unnecessary given the scope of Federal Rules 26 and 34. Specifically, the defendant’s proposal included the following language:

  • “[A]part from this … protocol, each party has an independent obligation to conduct a reasonable search in all company files and to produce non-privileged and responsive documents to pending document requests.”

  • Defendant objects to plaintiff searching for responsive electronic documents only from the six identified custodians. Rather, “Defendant wants plaintiff to have all its employees search for responsive documents and insists that its obligation is to search all its files for potentially relevant information to this litigation.”

  • “Defendant maintains that both parties have an independent obligation to search all files from all employees that could reasonably contain responsive documents to the parties’ document requests.”

Because Rules 26 and 34 impose upon litigants obligations to conduct reasonable searches for, and identify the source/location of relevant documents that are relevant to the litigation, the court found that provisions in the parties’ proposed ESI protocol regarding these statutory requirements were not necessary. Moreover, according to the court the particular provisions were overbroad, insofar as they purported to impose upon the parties an obligation to search “all” company files or search “every” file from “all” employees.  As the court detailed, it is within the discretion of a litigant to determine what a “reasonable” search is, and further noted that the contours of what is “reasonable” is dependent upon a totality of the factors including, for example, the size, operation, and sophistication of the entity/party.  When parties identify documents by source/location, it is typically with reference to a particular email account, shared network or shared drive.  When this is the case, parties may choose to search such repositories after agreement on search terms.  According to the court, in this instance, “the producing party must include” search terms it “believes are needed to fulfill its obligations under Rule 26.” In other words, the producing party must search custodians/locations it identifies as sources of relevant information as part of its statutory obligations under Rules 26 and 24. That party should also cooperate with the requesting party to the extent the requesting party proposes additional search terms, custodians, or locations that may have responsive information.

This case reminds litigants that the Federal Rules impose various eDiscovery obligations irrespective of provisions set forth in a negotiated ESI protocol. It also reminds litigants that these statutory obligations require a party to produce reasonably accessible and responsive documents without awaiting receipt of a discovery demand or specific search terms. And so, it stands to reason that a litigant is statutorily obligated to identify and produce relevant documents even before any ESI protocol is finalized and irrespective of whether the particular relevant and responsive discovery is called for in an ESI protocol.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XIII, Number 172
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About this Author

Kathryn Cole Commercial Litigation Attorney Long Island
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Kathryn C. Cole represents large and small businesses, financial institutions, and individuals in virtually all aspects of federal and state court commercial litigation, arbitration and mediation, and before federal agencies and regulatory bodies. In addition to advising on electronic data and cyber-related issues, Katy has considerable experience in all areas of complex litigation including contract claims, product liability claims, tort claims, consumer class-action claims and securities class-action claims.

516-629-9606