Post Process

Everything to do with E-discovery & ESI

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

Posted by rjbiii on March 28, 2009

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

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