Success in Discovery Requires More Than the Best-Laid Plans of Mice and Men

October 9, 2015 Jennifer Latzo

According to popular legend, in 1786, Scottish poet Robert Burns wrote that the “best-laid plans of mice and men often go awry” as part of his apology to a mouse whose nest he destroyed while ploughing a field. These words are frequently echoed in the laments of parties to litigation today, as a plaintiff recently complained to the Court of Federal Claims about a defendant’s lax discovery efforts despite seemingly well-intentioned plans in New Orleans Regional Physician Hospital Organization, Inc. v. United States.

In this breach of contract case involving the payout of Medicare claims, the plaintiff filed several motions to compel the defendant to provide adequate discovery responses. During discovery, the plaintiff came to believe the defendant’s efforts to identify responsive documents were deficient and asked the defendant to identify its custodians and document search protocols, including the search terms it used to locate documents.

The court’s review turned up a number of shortcomings, despite the defendant’s plan for conducting extensive discovery. As an initial matter, the defendant issued a legal hold late—five months after the case commenced—and never followed up on its dispersion among various agency branches. But, because the plaintiff had not yet raised the issue of spoliation, the court focused on the deficient search for documents. The agency professed to give detailed instructions to document custodians, suggesting that the custodians used 28 search terms to locate potentially responsive documents. However, the evidence showed that an agency communication set forth a recommendation for searches that included 12 categories of documents and 8 search terms—far short of the defendant’s representation—and the declarations filed by 23 custodians showed “great variation in the methods and key words used in the searches,” with some using as few as two search terms. Moreover, the declarants often did not remember their search methods, and they failed to document their efforts.

Therefore, the court concluded that the defendant failed to put in place a “systematic, reliable plan to find and produce all relevant documents in this case.” The court admonished that a “proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.” Here, there was insufficient evidence for “the court to conclude that a thorough and reliable search was conducted.” To satisfy this standard, the defendant had to “be able to ‘explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.’” Because the defendant could not satisfy these requirements, the court required the parties to work together to establish new search parameters, including a list of custodians, search protocols, and search terms for the defendant to use; it also required the defendant to keep detailed records about its searches.

As this case illustrates, parties to litigation cannot simply set a plan into motion, fail to follow up on its progress, and expect to succeed in court. Prudent counsel will shepherd—personally or through an e-discovery expert—custodians through every step of discovery. In most cases, it is unwise to delegate document identification and search to custodians, who are unlikely to understand the rigor and consistency required to establish a defensible e-discovery protocol. Instead, counsel should closely monitor all efforts to unearth and collect potentially responsive documents and data.

Sheila Mackay is vice president at Conduent. She can be reached at smackay@conduent.com.

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