Inappropriate Behavior

Jason Baron is Director of Litigation for the National Archives and Records Administration.  When he's not scouring the West Wing for wayward e-mail ("Dick, I know that PST was here a second ago!"), he is the go-to guy for thought leadership in electronic search.  In fact, here in the Texas Hill Country, we call him the "Sultan of Search," and hope that all y'all are fixin' to do it, too.

Jason was kind enough to send over the hot-off-the-bench decision in IN RE: FANNIE MAE SECURITIES LITIGATION, No. 08-5014,out of the U.S. Court of Appeals for the D.C. Circuit.  Yes, a rare appellate court decision on e-discovery!  This is one we will be talking about for a while because the unfortunate outcome--much like the Victor Stanley case--has much more to do with mishandling of the case before the trial court than issues unique to e-discovery. 

The decision involved appellate review of contempt sanctions for failure to comply with a Rule 45 subpoena served by defendants upon a governmental non-party, the Office of Federal Housing Enterprise Oversight or OFHEO.  It's a rare case where a stranger to the litigation gets in this much hot water (and wastes so much taxpayer money) when by all appearances it could have been handily avoided.

In the process of sustaining contempt sanctions (that seem pretty reasonable on the facts set out in the opinion), the D.C. Circuit goes to tortured lengths to parse an artless clause in a stipulated order that allowed the requesting parties to submit search terms: 

"OFHEO will work with the Individual Defendants to provide the necessary information (without individual document review) to develop appropriate search terms. By October 19, 2007, the Individual Defendants will specify the search terms to be used."  Id. at p. 5.

The producing party squawked when the other side specified over 400 search terms, generating hits on about 660,000 documents, tellingly described as more than 80% of the Office's e-mail.  Per the appellate court, "that figure may simply indicate that most of the emails actually bear some relevance, or at least include language captured by reasonable search terms."

Or it may simply indicate that most of the search terms were pulled out of someone's...never mind. 

OFHEO argued that the clause required the search terms submitted be appropriate.  The court disagreed, reasoning that "appropriate search terms" modified only the information that OFHEO was to produce to the requesting parties to help them frame search terms.  It didn't require the terms submitted be appropriate in content or number, so long as they weren't furnished in bad faith.  Was THIS what Judge Facciola meant when he opined (in O'Keefe) that you need a linguist if you're going to do keyword search?!?

It's pretty obvious why the trial judge got fed up with OFHEO.  One of my favorite lines from the opinion is, "According to OFHEO, it never understood the February letter’s request for communications on backup tapes to apply to its disaster recovery backup tapes...."  [Incredulous italicizing added].  As taxpayers, we should be fed up that OFHEO spent over $6 million--more than 9% of its annual budget--and still botched things so badly.

But let's be clear.  The fault here wasn't with electronic discovery run amok or runaway Rules or appellate judges closing ranks behind a colleague.  The problem was a lack of candor, a dearth of cooperation and (and here I'm extrapolating), an abysmal lack of expertise respecting keyword search.  There's enough shame to go around.