There isn’t much out there in the way of a road map from North Carolina’s state courts on how lawyers should fulfill their obligations to produce electronically stored information. So you might want to take notice of a little bit of direction in today’s Order from the Business Court in Hill v. StubHub, Inc.
By a little bit of direction, I mean exactly that. It’s only this tidbit from the last paragraph of the Order, where Judge Tennille said:
Attached hereto is an opinion from Magistrate Judge Andrew Peak in William A. Gross Construction Association, Inc. v. American Manufacturers Mutual Insurance Company. It contains a message for counsel.
What’s the message of American Manufacturers? Well, that case involved a dispute between parties about how a keyword search of an email database in the hands of a non-party ought to be done. The parties disagreed on what words ought to be searched for. One wanted narrow terms, the other broad terms, and no one had bothered to talk to the party that held the emails about what would make sense.
Instead of making any deliberate effort to resolve the issue, the parties dropped the problem in Judge Peck’s lap. He wasn’t happy about being the decider, noting that he was "no keyword expert." He said:
This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails. Prior decisions . . . have warned counsel of this problem, but the message has not gotten through to the Bar in this District.
Judge Peck said he was delivering a "wake-up call to the Bar." He said that "[i]t is time that the Bar — even those lawyers who did not come of age in the computer era — understand" what it takes to craft an appropriate keyword search. He stressed the "need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms . . . to be used to produce emails or other electronically stored information."
So, that’s the "message" conveyed today by Hill v. StubHub. Judge Tennille told the parties that they had twenty days "to meet and confer and agree upon a word search that is carefully crafted with the appropriate keywords determined after consultation with StubHub’s ESI custodians." He also ordered the parties to "address quality control and testing in their discussions and, if the volume of documents is excessive, use of appropriate sampling methodologies."