What We Have Here Is a Failure to Cooperate: Court Thwarts Party’s Use of “Self-Selection” Discovery Method
Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015).
In this products liability case involving a vehicle flaw that caused sudden, unintended acceleration, the parties experienced a series of discovery disputes that culminated in the court awarding the plaintiffs the right to depose Ford’s corporate representative about its document search and collection methods.
During a discovery conference, the plaintiffs complained about the lack of e-mail in Ford’s document production. Ford asserted that it “swept” the e-mail of 10 to 20 custodians. The “sweep” involved a “self-selection” process by each custodian. The custodians were informed by counsel about the plaintiffs’ claims and received a list of suggested search terms. These custodians were instructed to use these terms to search the “Personal Filing Cabinet” folders on their hard drives, where they stored their e-mails.
The plaintiffs “expressed grave doubts” that Ford’s self-selection process was “reasonable.” Some custodians had not searched for any documents relating to the system at issue; several conducted only narrow searches, if any. Some custodians allegedly had no relevant documents in their custodial files, but the plaintiffs unearthed hundreds of documents from other sources. Ford claimed that discovery was ongoing and that it had produced thousands of pages of documents. Because no ediscovery protocol had yet been implemented, the court ordered the parties to meet and confer about search terms and told the plaintiffs to depose the defendants’ witnesses to investigate its discovery efforts.
As discovery continued, the plaintiffs asked Ford to share its search terms. Ford replied that there was no list of search terms because each custodian developed a list of terms and phrases after meeting with counsel to discuss the case; even if there were such a list, it would be protected as attorney work product. Eventually, the parties agreed on a list of standard terms, but Ford refused to share a report showing those terms’ hits across two custodians’ documents. The court ordered Ford to share the report as well as a list of custodians whose records had been searched.
Ultimately, Ford identified 12 custodians; of these, five had no responsive documents, and the remainder had fewer than 150 documents. The plaintiffs viewed this as another red flag that showed problems with Ford’s discovery. Accordingly, they sought to depose a corporate representative on the company’s document retention policies and practices, its search for documents, and evidence of any spoliation. Ford asked the court to quash the motion, claiming the plaintiffs sought irrelevant, “overly burdensome,” and “improper ‘discovery on discovery.’” It also suggested that the identities of custodians and its search methods were attorney work product.
The court sided with the plaintiffs, granting the deposition, because Ford provided no specific evidence about its document collection and acknowledged variation in the use of search terms without further explanation. Instead of engaging in a transparent discovery, the company “cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process.” The topics were not governed by work product protection because they did not involve the thought processes of counsel; rather, they involved the “underlying facts of what documents are responsive” to the defendants’ document requests.
The plaintiffs also filed a motion to reconsider the decision to permit Ford’s “self-selection” process. The court viewed the motion instead as a motion to compel—one seeking a “transparent discovery process in which ‘Ford discloses its collection methods and runs Plaintiffs’ search terms across appropriate custodians and sources of documents.’” The court granted this request but refused to rule on whether Ford’s document search, retrieval, and production were inadequate until after the Rule 30(b)(6) deposition.
Finally, the court compelled Ford to share its collection methods, including the names of custodians, and ordered both parties to use agreed-upon search terms to streamline the discovery process, involve their IT experts, and consider other methods of searching.
Parties need to engage in thorough, two-way planning at the start of discovery. Without a mutually agreed upon plan outlined up front, the lack of transparency is likely to breed distrust and lead to discovery motions.
Moreover, consistency is key; directing individual custodians to take responsibility for collecting their own documents without a specific, consistent plan is a recipe for an incomplete collection that begs for spoliation motions and sanctions.