Misadventures in Searching Unallocated Space

http://ow.ly/831AJ

An article by Joshua Gilliland, Esq. posted on his blog the Bow Tie Law Blog.

This article discusses the specific case of  I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D.N.J. Dec. 9, 2011).

This case involved stipulated search terms provided to the plaintiff in a case, and discussed the level of burden that the search would impose.

The appellate court upheld the lower court ruling which allowed the plaintiffs to limit certain data from the production request   The author states the initial order was:  "1) Allowing the Plaintiffs to withhold ESI from the unallocated space and 2) Permitting the Defendants to seek reimbursement for their search from the Plaintiff. I-Med Pharma Inc.

The Magistrate Judge also found:

1) Good cause existed to modify the original discovery order, because the burden on the Plaintiffs would “outweigh any potential benefit that may result.”

2) Defendants had not met its burden of demonstrating the complete relevancy of the ESI they sought, including that the Defendant had not identified any ESI destroyed by the Plaintiff.

3) The overbroad search terms made the likelihood of finding relevant information that would be admissible at trial “minimal.”"

The article goes on to further state, "Attorneys will always be needed to decide what ESI to use in a deposition or trial, because a human being is better at determining what will convince other human beings the “truth” of a case. However, technology can make finding what is relevant out of a data set with 65 million records far more effective than a brute force review of each record."