A recent decision by Magistrate Judge Lisa Cisneros of the Northern District of California, Rusoff v. Happy Grp., Inc., No. 21-cv-08084-YGR (LJC) (N.D. Cal. Jan. 05, 2023), illustrates the importance of narrowly tailoring search terms to focus on the issues of the case. The court determined that the nine search term strings proposed by the plaintiffs were all “unduly broad and clearly disproportionate to the needs of the case” (for example, one of the plaintiffs’ proposed terms was “definition”). Similarly, the court found that the defendant’s counter-proposed terms were “unreasonably restrictive” as it sought to connect all of the search strings to one keyword (“pasture”).

In response to the parties failing to reach a compromise on the search terms and the parties’ unpersuasive arguments, the court proposed its own set of search strings for the parties. The court indicated that it crafted the proposed search strings based on “the operative complaint and the terms in the related document request and any relevant definitions provided with discovery request.” That was a more activist role than many courts are willing to take.

Negotiating search terms is challenging, as the requesting party will often propose broad terms, and the producing party will often attempt to minimize their discovery burden. Courts are more likely to be persuaded by parties whose search terms are tailored and proportional to the issues of the case. Focusing on the operative complaint and terms in the discovery requests should be the starting place for crafting terms, as the court did here. Citing to the specific document requests, providing document hit counts, and providing statistics from sampling, can also be persuasive when arguing your position with opposing counsel or the court.