eDiscovery Defensibility in Case Law


Written by Nikki Hearon.

In 2006, The Sedona Conference (TSC), a research organization on the forefront of eDiscovery and often cited by the courts, set forth The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d. ed. 2007).  In particular, Sedona Principle 6 states: “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” DiscoverReady, Predictive Coding and Freedom of Choice: Sedona Principle 6 in Action. This particular principle has been used by producing parties, along with Federal Rule of Civil Procedure (FRE) 26(b)(1) to defend its chosen method for identifying and producing documents. Even if one party demonstrates that its chosen method is “better” than the other party’s method, the courts will not force the other party to use that method. So, what makes an eDiscovery process defensible and under what circumstances have the courts ruled for, or against, a party’s particular use of a process?

Defensibility In Practice

In Peter Kiewit Sons, Inc. v. Wall Street Equity Group, Inc. 8:10CV365 (D. Neb. May 18, 2012), United States Magistrate Judge Cheryl Zwart set forth requirements that create a defensible eDiscovery process:

  1. Suspend routine document destruction policy
  2. Put a legal hold in place
  3. Legal teams become fully aware of company’s retention policy and data infrastructure
  4. Communicate/interview “key players” to determine how data is stored
  5. Monitor legal hold compliance to ensure that all sources
  6. Retain all relevant case information
  7. Produce all information that is responsive to opposing party’s production request

Judge Zwart’s list was the product of discovery abuses committed by the defendants in the case. The requirements and their increasing complexity seem designed to prevent fraud and negligence. The list is important because as the use of eDiscovery methods grows exponentially, parties have tried to force opposing parties to use the methods they deem best in a particular case. The court, however, has remained steady in focusing on the ability of producing party to demonstrate diligence and reasonableness.

For example, In re: Biomet M2a Magnum Hip Implant Products Liability (MDL), No. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013), the defendant Biomet produced documents in compliance with several concurrent cases before MDL consolidation. Biomet then sought to produce the same documents in the MDL as the discovery requests were identical. Specifically, Biomet culled 19.5 million documents and attachments down to 3.9 million by using keyword searches. Once Biomet had reduced the document count, it employed “a predictive coding tool on the culled (and de-duplicated) data set, identifying almost 2 million documents for production.  According to Biomet, it had already spent $1 million on discovery, and expected to spend up to $2.25 million more.” DiscoverReady, supra. Plaintiffs objected and argued that Biomet should have used predictive coding exclusively as this method is more accurate than keyword searches.

The court denied Plaintiffs’ request and reasoned that defendant’s use of keyword searches and subsequent use of predictive coding satisfied the “reasonable” requirement of FRE Rule 26 and 34. Further, the court reasoned that making Biomet start its discovery process over by using predictive coding would go against FRE Rule 26(b)(2)(c)’s proportionality standard, which allows a court to limit discovery if the discovery request sought is unreasonably cumulative or duplicative. Biomet was the first case in which the court ruled a party can use a keyword search and then employ predictive coding as opposed to having to use one over the other. Moreover, because Biomet was able to detail and explain its methodology and showed that relevant documents were not withheld from Plaintiffs, it reflected the reasonableness discussed in the Sedona Principle.

In a similar contemporary case, Fosomax/Alendronate Sodium Drug cases, No. JCCP 4644 (Orange Co. Cal. Sup. Ct.)(Apr. 18, 2013), the defendants also used keyword searches instead of predictive coding. Likewise, Plaintiffs wanted Defendant Merck to start over using predicative coding. The court denied this request reasoning Defendant’s process showed a “reasonable search” and “diligent inquiry.” DiscoverReady, supra. Notably, the court decided the “Plaintiffs had not shown any material deficiency in the search term process used by Merck to produce documents in other cases. Nor could the plaintiffs show that the additional benefit from a new production would outweigh the significant burden to Merck of re-collecting and re-searching using predictive coding, especially considering the already available responsive documents.” Id.

In the cases above, the court sided with the producing party in stating keyword searches were acceptable over more accurate predicative coding. The court’s focus in both cases centered on what was reasonable and showed due diligence on the part of the producing party.


The TSC and FRE 26(b)(1) have been updated to narrow their scope in regards to proportionality due to the increased cost of discovery under ESI. The result of such seemed that the court would necessarily begin overturning, or modifying, previous decisions that allowed for broad interpretation of discovery. On the contrary, however, the courts have remained focused on reasonableness of discovery and the producing party’s ability to defend its methodology, even if less accurate, and show diligence and good faith. Previous case law still remains good law and also shows the flexibility of methodology courts will allow in this rapidly expanding area of ESI and discovery.

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