Ride the Lightning

KEYWORD SEARCHES: SHERLOCK HOLMES OR INSPECTOR CLOUSEAU?

March 3, 2008

On February 5th, the United State District Court for the Southern District of Texas issued a Memorandum and Order in Diabetes Centers of America, Inc. v. Healthpia America, Inc. (Slip copy, 2008 WL 336382). Judge Atlas has clearly had her hands full with this case, with multiple discovery disputes following one another. In this Memorandum and Order, she had to deal with both parties seeking adverse inference instructions against one another as well as monetary sanctions for discovery abuses. Defendants failed to back up e-mail which were then lost when two laptops were stolen. However, the failure to back up was apparently standard, which Judge Atlas described as “lax electronic document maintenance procedures.” On the other side, Plaintiff entrusted the searching of its records to a junior associate who failed to search on obvious keywords. She apparently had very little direction or oversight. No showing of bad faith was made by either party.

With finger-pointing being the order of the day, a wise Judge Atlas exercised her discretion to tell them (judiciously of course) that they could both go jump in a lake. As she said, “The conduct by both sides discussed herein is questionable; all parties have been remiss in fulfilling their own discovery obligations and keeping the opponent informed of pertinent matters. The parties, however, are too quick to criticize the other side for any infraction of the discovery rules. The Court, in an exercise of its discretion, declines to impose sanctions against either party.”

Though no sanctions were imposed here, there is the obvious suggestion that letting Inspector Clouseaus run amok with searching may give rise to sanctions, so long as the other side comes to the court with completely clean hands. As Judge Facciola noted in U.S. v. O’Keefe (D.D.C. Feb. 18, 2008), keyword searching is a very complicated area of electronic discovery “where angels fear to tread.” You may not always need Sherlock Holmes, but letting untrained associates perform searches without close direction from a specialist is certainly an invitation to disaster.

Hat tip to Ralph Losey for bringing this case to my attention. He has posted the decision at http://ralphlosey.files.wordpress.com/2008/03/diabetesvhealthpiacase.doc

E-mail:      Phone: 703-359-0700