In the U.S. District Court for the Southern District of California's 2011 ruling in National Association of Music Merchants Musical Instruments and Equipment Antitrust Litigation, Magistrate Judge Louisa S. Porter denied the plaintiffs' motion to order defendants (popular guitar-makers such as Fender, Gibson, and Yamaha, as well as well-known guitar retailers such as Guitar Center) to re-search their electronically stored information using commonly used abbreviations and acronyms for some of the agreed-upon search terms defendants had used. Review of the decision shows that the court decided as it did because defendants acted properly in two key ways: They cooperated thoroughly at the meet and confer and otherwise acted diligently in their searching. While cooperation made the court lean toward defendants, it was their ability to demonstrate, using their own search results, that granting the plaintiffs' motion would likely yield little additional material that ultimately persuaded the court.
The defendants initially notified the plaintiffs that they intended to use search term queries to search their ESI, and specifically solicited search terms from the plaintiffs. Initially, the plaintiffs suggested none, asserting that they could not make a meaningful contribution toward drafting proper search terms or procedures because of the defendants' "unwillingness to provide them relevant information."
Shortly before producing ESI to the plaintiffs, the defendants provided them with their search terms, at which point the plaintiffs found the terms "too restrictive and unlikely to capture some highly relevant documents." In response, the defendants agreed to modify the terms and to use terms that included other defendant names "in an effort to capture defendant-to-defendant communications."
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By: Leonard Deutchman