My esteemed colleagues, Kelly Twigger and Doug Austin, each posted about a recent discovery decision from the Middle District of Florida, case no. 8:23-cv-102-MSS-SPF, styled, Byte Fed., Inc. v. Lux Vending LLC. and decided by United States Magistrate Judge Sean Flynn on May 1, 2024.

Kelly and Doug share their customarily first-rate analyses of the ruling insofar as its finding that the assertion of boilerplate objections serves as a waiver.  The Court spanked defendant, The Cardamone Consulting Group, LLC, for its conduct.  That’s been picked apart elsewhere, and I have nothing to add.  I write here to address a feature of the dispute that no one has discussed (and sadly, neither did the Court), being the nature of the request for production that prompted the boilerplate objection of “vague and incomprehensible.”  We can learn much more from the case than just boilerplate=waiver.

Let’s look at the underlying request:

DOCUMENT REQUEST NO. 7:

All documents and electronically stored information that are generated in applying the search terms below to Your corporate email accounts (including but not limited to the email accounts for Nicholas Cardamone, Daniel Cardamone, and Patrick McCloskey):

Byte	Bitcoin w/s Florida	Stanton
ByteFederal	Bitcoin w/s trademark	Branden w/3 Tawil
Byte Federal	lawsuit	Brandon w/3 Mintz
most w/5 trusted	Scott w/3 Buchanan	DKI
Google w/s trademark	confusion or confused	Dynamic w/5 keyword

In its Motion to Compel, Plaintiff calls this request “clear on its face, and … a garden-variety type of request for production in connection with narrowly tailored search terms.”  The Plaintiff adds, “[y]et during the parties’ meet-and-confer, and although Cardamone’s counsel claimed that she was familiar with electronic discovery, the assertion was that her client – a company that has purportedly generated hundreds of millions of dollars in connection with online advertising and electronic data – ‘did not understand what to do.’”

So, Dear Reader, would you understand what to do? You’re steeped in electronic discovery—that’s why you’ve stopped by—but is the request clear, narrowly tailored and “garden-variety” such that we can apply it to a proper production workflow?  A few points to ponder:

1. There’s nothing in the Federal Rules of Civil Procedure that prohibits a request to run specific queries against databases, and email accounts are databases.  Rule 34 requires only that the request “describe with reasonable particularity each item or category of items to be inspected.” 

Conventional requests are couched in language geared to relevance; that is, the requests seek documents and ESI about a topic.  Counsel must then apply the law and the facts to guide clients in identifying responsive information.  Counsel reviews the information gathered and decides whether it’s responsive or should be withheld as a matter of right or privilege.

Over time, the notion took hold that sifting through electronically stored information was unduly burdensome, so opposing parties were expected to work together to fashion queries–“search terms” –to narrow the scope of review.  These keyword negotiations run the gamut from laughable to laudable. They’re duels between counsel frequently unarmed with knowledge of the search tools and processes or of the data under scrutiny.  In short, they use their ginormous lawyer brains to guess what might work if the digital world were as they imagine it to be.

Here, the plaintiff cuts to the chase, eschewing a request couched in relevance in favor of asking that specific searches be run: half of them Boolean constructs employing two types of proximity connectors. 

Was this smart?   You decide.

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