Electronic Discovery Disputes Have Broader Implications For Your Business
Mr. Wescott over at the Electronic Discovery Blog has posted about an opinion in a construction delay case from New York involving the parties poor creation of search terms in their attempt to get electronically stored information (in this case – e-mails) from the owners construction manager.
The search terms provided by the owner were too vague and narrow and the search terms provided by the party seeking the company were too broad and would have resulted in the production of almost the entire email database of a company involved in the construction industry… imagine what a search for “change order” would produce in your system if not properly tailored to the suit at hand.
The court admonished the parties and crafted its own terms… an on an interesting note, stated that the problem of turning over e-mails not related to the project in dispute could be avoided if the company producing the emails [Hill] had used a standard “Re:” line for discussing the project.
“Hill's only contribution to the discussion was to agree that DASNY's search terms were probably too narrow but the other parties' terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard "Re" line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so -- perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.”
The point is not lost, with a policy or standard in place not only are the irrelevant emails left out of the search, but a party could have the court look to the policy to say that it had produced the relevant documents and possibly avoid a costly electronic discovery dispute.
The fact that everyone communicates with e-mail these days should get you thinking about putting a document retention policy in place and having company policies for the use of all your electronic media. The Illinois State Courts are far behind the Federal Courts in addressing the issue of electronically stored information and how to handle it in discovery. However, it is not unlikely that you could find yourself in Federal Court or that the Illinois State Court’s could implement their own plans and procedures regarding this information.
