The Western District of Washington’s Revised ESI Model Order: One Size Does not Fit All

The U.S. District Court for the Western District of Washington has revised its Local Civil Rules effective January 1, 2020.  The changes to the rules themselves are modest; perhaps more important to the Western District bar are the changes to the District’s Model Agreement Regarding Discovery of Electronically Stored Information and Proposed Order (the “Model Order”).  In many federal cases involving discovery of electronically stored information (“ESI”), the Model Order is the starting point for the parties’ negotiation of the nature, scope, and scale of discovery—and parties often adopt the Model Order wholesale.  The Model Order thus sets the ground rules in the Western District for one of the most expensive and fraught aspects of American litigation.

One of the most important changes is the revised document’s requirement that the parties decide on a final set of search terms before they actually start reviewing and producing documents.  (See Model Order § C.2.a.)  This common-sense approach replaces the previous default scheme, whereby the producing party was allowed to unilaterally determine, disclose, and run search terms of its choosing, and the receiving party had two weeks to review the produced documents and decide what five additional search terms it would demand that the producing party run.  The old scheme was almost impossible to implement in cases with large numbers of documents, and in any event was inefficient for both sides.

Despite this and other changes, however, the revised Model Order remains vague in places and thus potential fodder for discovery disputes.  For instance, the revised Model Order still limits the receiving party to a particular number of search terms it may add to the producing party’s disclosed list—now 10, up from 5.  But treating search terms as inherently meaningful units is an oversimplification.

Whether a party has met its discovery obligations depends on the reasonableness of its efforts, which correlates not just with the number of search terms used, but also with the number of “hits” returned by a given set of search terms.  The Model Order could require the parties be transparent when planning for ESI discovery by disclosing and negotiating in terms of hit counts, rather than a number of search terms.  At the very least, a requirement that parties disclose hit counts would help cut through the arguments over whether a given term is “overbroad” or “unduly burdensome.”  At best, such a requirement could force parties to cooperate in planning for ESI discovery, rather than treating it as another litigation battleground.  But the revised Model Order merely provides that a party “may provide hit counts for each search query.”

This merely illustrates what the Model Order acknowledges: it is only an example, one that provides a baseline for the least common denominator.  It is one size, but it does not fit all.

–Jacob P. Freeman

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