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In I-Med Pharma, Inc. v. BioMatrix [pdf], 2:03-cv-03677 (D.N.J. Dec. 9, 2011)(UNPUBLISHED), Senior District Court Judge Dickenson R. Debeviose affirmed Magistrate Judge Michael Shipp’s Order alleviating the plaintiff of its obligation to review and produce 95 million pages, including documents recovered from unallocated space. As the court explained, “this case highlights the dangers of carelessness and inattention in e-discovery.”
In this breach of contract case, the plaintiff alleged that the defendants failed to live up to their obligation to produce licensed products for the plaintiff to distribute under the parties’ agreement. In discovery, the parties stipulated that the defendants would conduct a forensic search of the plaintiff’s computer system. The mutually-agreed upon search terms were generic and included words such as “agreement,” “loss,” “credit,” “sample,” and “return.” The searches were not limited to specific custodians or relevant time periods and included all active files as well as unallocated slack space across the plaintiff’s entire computer system. The search resulted in more than 64 million hits and 95 million pages of data. The plaintiff refused to conduct the agreed-upon privilege review and sought relief from the court.
Magistrate Judge Shipp modified his prior order to exclude a privilege review of the data found in unallocated space. The defendants objected and appealed to the district court. District Court Judge Debevoise ruled that in evaluating whether a set of search terms are reasonable, a party should consider a variety of factors, including: (1) the scope of the documents searched and whether the search is restricted to specific computers, file systems or document custodians; (2) any date restrictions imposed on the search; (3) whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents; (4) whether operators such as “and”, “not”, or “near” are used to restrict the universe of possible results; (5) whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue.
Taking these factors together, Judge Debeviose held the Magistrate Judge’s modification of the prior order was a proper exercise of discretion. While the court found that the plaintiff should have known better than to agree to the search terms, the interests of justice and basic fairness would be “little served by forcing plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence.”
Judge Debevoise also rejected the defendants’ suggestion that the plaintiff’s privilege review be limited to a search for documents containing the words “privileged.” “A privilege review of 65 million documents is no small undertaking. Even if junior attorneys are engaged, heavily discounted rates are negotiated, and all parties work diligently and efficiently, even a cursory review of that many documents will consume large amounts of attorney time and cost millions of dollars.”