In Equal Employment Opportunity Commission v. FedEx Ground Package System, Inc., Civil Action No. 2:15-cv-256 (U.S. Dist. Ct. Western Dist. of Pa. (Mar 21, 2018), the Court denied FedEx’s Motion to Preclude Discovery and for a Protective Order limited further email review, and held instead that the discovery sought by the EEOC was “relevant to [its ]claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” FedEx argued that in order to respond to the EEOC’s discovery requests, it would need to review approximately 363,765 email messages and attachments maintained by twenty-six FedEx employees contained in 193 gigabytes of FedEx data. According to FedEx this effort would cost more than $1 million and was burdensome and disproportionate to the issues in the case. As part of its argument, FedEx presented certain sampling and statistical information to the Court.
In a lengthy opinion, the Honorable Mark R. Hornak questioned the sampling performed by FedEx, whereby it claimed initially that only 6% of the email and attachments (out of 363,765 email messages and attachments) identified by proposed search terms were “relevant” to the issues in the case and none were “smoking guns.” After the Court gave the EEOC the opportunity to “reverse engineer” the sample results, FedEx subsequently revised its relevance percentage to 8.3%. The EEOC’s review suggested that more than 15% of the documents in the sample set were responsive and relevant in the sample set. The Court was not persuaded by FedEx’s sampling argument, stating that even if there were only 30,000 or possibly 54,000 properly discoverable documents, FedEx had chosen to store and retain this information and must bear the burden of searching it and producing the relevant information. According to the Court, “from ‘Day One,’ the parties have been of the view that they believe this is a big case. On that, the Court takes them at their word.”
The Court pointed out that FedEx went to “great lengths (and expense) to demonstrate that the EEOC’s requests were unreasonable based on the magnitude of the search results…” Notably, however, the Court stated that:
[t]he record does not reflect that FedEx proposed any further meaningful revision of the search terms teed up via the EEOC that would both address the core discovery legitimately sought by the EEOC but would also screen out what FedEx says may be well more than 200,000 false hits. It seems to the Court that the able lawyers on both sides of the case could figure out what it is about the last-used search terms that is driving that result.
An iterative approach to developing search terms through the use of sample sets has long been considered a “best practice” in e-discovery and is nearly always necessary to arrive at terms that are neither over nor under inclusive, and acceptable to the parties in a cooperative process under Rule 26. Typically, it takes two to three rounds of proposed search terms and sample sets (including the null set) involving not more than a total of 1,200 – 2,400, documents to refine the search terms. Often two to three iterations of search terms can result in very significant reductions of the data requiring review.
Alternatively, the use of technology assisted review (TAR), which is widely accepted and available, can also very significantly reduce the number of documents needing review from the initial collection, eliminating the cost of a linear review of thousands of documents. Continued refinements in TAR technology help to quickly and efficiently identify early on in the review process the important and key documents in the case. Less relevant documents fall to the bottom of the review and possibly can be eliminated from review altogether. Last, data visualization tools can also quickly aid in the location of documents relating to particular issues and the identity of the key custodians possessing email and documents relevant to particular claims or defenses, thereby identifying primary, secondary custodians and other e-discovery phasing objectives.
A copy of the Court’s opinion in Equal Employment Opportunity Commission v. FedEx Ground Package System, Inc., is available at here.