Judge Orders Structured Negotiation Over eDiscovery Disputes

In Humanmade v. SFMade, Magistrate Judge Peter H. Kang ordered a structured negotiation process to resolve eDiscovery disputes addressing search terms, production delays, and privilege issues. According to an article by Doug Austin at eDiscovery Today, the plaintiff claimed the defendant inadequately searched for and collected responsive documents and delayed production by engaging an eDiscovery vendor. 

The defendant disputed seven search terms, arguing they generated too many irrelevant documents, thus making the review overly burdensome. The defendant also claimed to have produced about 14,000 documents, contrary to the plaintiff’s assertion of no production since April.

Judge Kang noted both parties’ failure in communication and meet-and-confer sessions, which are essential for resolving eDiscovery issues. He expressed disappointment over the drastic differences in representations made to the court about the negotiation process and the lack of transparency from SFMade regarding hit counts for disputed search terms.

To resolve the issue, Judge Kang ordered a structured negotiation process:

• The defendant must disclose hit counts for the disputed terms.
• The plaintiff should propose up to seven modified search terms.
• The defendant must run these modified terms and report hit counts.
• Lead trial counsel must meet and confer to negotiate term modifications.
• If unresolved, a joint notice summarizing the dispute must be filed, potentially leading to an in-person hearing.

Additionally, Judge Kang established procedures to expedite ESI production and handle inadvertently produced privileged information via “Clawback Notices.” Both parties’ lead counsel were also ordered to file declarations under oath to clarify conflicting representations made during meet and confers.