M.D. Pa.: Departing from Sedona Produces More Heat Than Light

This month, Magistrate Judge Martin C. Carlson issued a decision, Lawson v. Love's Travel Stops & Country Stories, No. 1:17-CV-1266, 2019 U.S. Dist. LEXIS 219687 (M.D. Pa. Dec. 2, 2019), ordering the Defendant to disclose its search results and directing the parties to conduct additional discovery. Judge Carlson began his decision by listing the 14 tenets of the Sedona Principles for best practices in electronic document productions. He stressed the importance of the use of relevant search terms (or TAR) and sampling in making document review efficient and accurate. "When litigants depart from these Sedona Principles, ESI discovery can often devolve into a dysfunctional process, one which produces more heat and smoke than light. When this occurs, the court must intervene and prescribe cooperative practices for parties that are unable to collaborate on their own." Id. at *6.

The Court blamed the Plaintiffs for not using search terms that were specific enough, and the Defendant for not performing sampling. Independently of one another, the Defendant chose to add its own modifying term to the Plaintiffs' search terms, and the Plaintiffs requested the disclosure of certain percentages of search results obtained using their original search terms. Judge Carlson faulted their lack of cooperation. "The parties' decision to pursue two different and unilateral approaches to resolve this discovery dispute then compounded rather than eliminated these discovery shortcomings." Id. at *18.

Reluctantly, the Court ordered its own resolution of the discovery dispute:

1. The Plaintiffs are to limit their search terms to the 25 most relevant in hit reports prepared by the Defendant.

2. The Defendant is to use these terms to identity a more focused body of data.

3. A statistical random sample is to be selected that both parties can inspect.

4. Additional modifying terms may be added if the sampling indicates they are needed.