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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Finding ESI Search Efforts Unclear, Court Requires More Discovery
Posted by Gregg Mayer on Friday, April 4th, 2008
Under the Federal Rules of Civil Procedure (“FRCP”), parties must disclose relevant electronically stored information (“ESI”) unless that ESI is not reasonably accessible. In order to take advantage of this exception, a party has to be able to document the search protocol it implemented and why some sources are not reasonably accessible.
In short, a court has to know exactly what has been searched and what has not. Moreover, the court has to agree there are good reasons that the ESI is not reasonably accessible.
If any of ESI-search information is unclear, then the court will require further discovery, as a federal magistrate in New York recently did in Baker v. Gerould.
In a March 27 opinion, the court expressed frustration with the lack of information presented by defendants on the efforts to retrieve ESI:
As noted by this Court during oral argument, insufficient information had been presented at that time to determine the adequacy of defendants’ search for the requested emails from accessible sources. Regrettably, the record is no more fully developed now than it was then. Although it is clear that some email communications have been turned over, the source or sources of those communications is not clear. For example, it is unknown whether those emails were recovered from existing hard drives, backup hard drives or traditional files used to maintain paper records. It is likewise unknown whether computer and/or paper files have been searched for all defendants, some of whom are no longer employed…but some of whom are.
Consequently, the court ordered the defendants to identify in writing all of the people who conducted the search. Following those identifications, the plaintiff would be allowed to depose those individuals to investigate the search. After all of that, then the court could determine whether the defendants properly responded to the ESI requests or whether more ESI – including restoration of backup tapes – was necessary.
Equally important to cost-effective retrieval of ESI is the ability to document exactly the steps taken during an ESI search and to sufficiently offer valid reasons why some ESI is not reasonably accessible.
Posted in: Federal Rules of Civil Procedure | Reasonably Accessible Information
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