This is a dispute I've seen come up in a few cases. The D. Del. Default Standard for Discovery includes a provision about search terms, setting forth that if a party uses search terms to locate responsive documents, it must disclose the search terms and allow the opposing party to request up to 10 additional terms.
This provision can cause some confusion. Sometimes parties read the Court's Default Standard, see the search term provision, and think that's the only way to collect ESI. Or, sometimes, a party really wants to dictate search terms to the other side, and argues that the Default Standard requires the use of search terms.
It doesn't. A party can elect to use search terms, or to collect in a more traditional custodian-by-custodian way. The Court confirmed that again this week in Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821-CJB, D.I. (D. Del. Feb. 12, 2024).
There, the plaintiff sought to force the defendant to "identify search terms used to identify potentially responsive information." Id., D.I. 205 at 1. The defendant responded that, simply, it didn't use search terms for general documents—it "worked with various employees" to collect the information. The plaintiff argued that defendant had to use search terms:
[Defendant] Egnyte concedes that it did not use search terms to locate potentially responsive ESI, but instead let unidentified Egnyte employees control searching. D.I., 211, 2. In a complex patent litigation centered on electronic file storage/syncing software, a search strategy that does not employ electronic searching means cannot be “reasonably comprehensive” as required under Rule 26. GlaxoSmithKline LLC v. Teva Pharms. USA, Inc., 2016 WL 859229, *2 (D. Del. Mar. 3, 2016). Egnyte cites to no authority to the contrary. . . . [Plaintiff] Topia now respectfully requests that Egnyte be ordered to conduct a new search using search terms and custodians selected by Topia. Ex. 46; MGA Entm't, Inc. v. Nat'l Prods., 2012 WL 12886446, *2–3 (C.D.Cal. Jan. 26, 2012) (granting new search where there was no indication of which custodians' files were searched, or where the documents were located, and an unduly narrow use of search terms); Profit Point Tax Techs., Inc. v. Dpad Grp., 2021 WL 7966873, *2 (W.D.Pa. July 23, 2021) (forensic analysis recommended where Defendant refuses to use search terms and failed to produce relevant documents).
Id., D.I. 215 at 2.
Judge Burke did not go for that. He easily denied the request and held that a party need not use search terms:
ORAL ORDER: With regard to Plaintiff's motion relating to certain discovery disputes, (D.I. 198), the Court, having reviewed the parties' briefing, (D.I. 205; D.I. 211; D.I. 215), hereby ORDERS [that] Plaintiff's request is DENIED. Defendant states that it did not use search terms regarding searches for paragraph 3(b) ESI, and the Court is not prepared to say that such a plan is inherently unreasonable. Plaintiff can, as Defendant invited, (D.I. 211 at 3), ask any non-privileged questions about relevant document collection efforts at upcoming depositions.
Id., D.I. 228.
One point worth noting is that the defendant did use search terms to search for e-mail. The Court did not hold that use of search terms for e-mail required the party to use search terms for other documents as well—although the parties didn't make that argument, either.
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