In this New Mexico federal district court case, defendant Micron Technology argued that counsel for plaintiff S2 Automation failed to fulfill its ediscovery duties, creating the real possibility that non-privileged information was not disclosed.
The Court required as part of its ediscovery-related order that S2 Automation provide information regarding its search strategy to Micron Technology “without a further interrogatory”. Relying on FRCP Rule 26(g), and in large part the sworn declaration of Micron Technology’s counsel — which asserted that S2 Automation’s outside counsel had stated that he was unfamiliar with the collection and production of S2 Automation’s documents because those processes had relegated to S2 Automation itself — the Court held that S2 Automation’s counsel must provide information as to its “search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process.”
Of course, such a disclosure requirement would be much less likely absent the documented statements of S2 Automation’s counsel. However, the real issue for parties and their counsel is not the slip of the tongue but the defensibility of the Rule 26 certifications. For if a defensible search strategy is in place, Counsel’s Rule 26 certifications will be determined sound, and any ill-considered remarks made during ediscovery meet-and-confers will present little risk, even if methodology disclosures are required.