pp&dTHE COMMITTEE ON PRETRIAL PRACTICE & DISCOVERY

Discovery works best without judicial involvement. I have never met a judge who looked forward to dealing with discovery disputes. Although I am sure there are

exceptions—particularly for evolving issues such as electronic data—those exceptions are rare.

Every case involves discovery, and almost every case involves discovery disputes of some type. Wise counsel work hard to resolve such disputes before raising them with the court. How, then, should counsel proceed when at a true impasse on a material discovery issue that cannot be resolved without judicial intervention? This article offers some suggestions, based largely on my time in private practice and, to a far lesser extent, my experience on the bench since May 2007 as a trial judge on the Arizona Superior Court. My comparatively short time on the bench has further reinforced some of my views on discovery disputes, clarified others, and provided context for new views that I do not recall having as a practitioner.

1. Be Prepared. Know your filings and know the opposing party’s filings. Know the key rules and cases and the issues in dispute, and the strengths and weaknesses of your positions. Try to anticipate and have answers for issues that may arise. In particular, have

(Continued on page 26)

In This Issue

It finally happens: you receive a response to a request for pro-duction in your federal court case that states, “Respondent will not produce any responsive documents, on the basis

that responsive documents, if any exist, are stored only on data sources that are not reasonably accessible due to undue burden or cost.” By invoking Federal Rule of Civil Procedure 26(b)(2)(B), your opponent has thrown you into a whirlwind of doubt—are there responsive documents or not? What sources? What is your next move going to be?

Rule 26(b)(2)(B), part of the December 2006 revisions to the Federal Rules of Civil Procedure related to electronic dis-covery, has been the subject of much commentary and specula-tion. It has not been subject to much scrutiny in the courts, yet.

A Rules-Based Approach to Probing the ClaimThe Federal Rules of Civil Procedure provide an outline for how to proceed when faced with a Rule 26(b)(2)(B) objection. The rule states that “A party need not provide discovery of electroni-cally stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”1 The rule establishes a procedure for resolving disputes over the claim:

On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the

American Bar Association Section of Litigation

Volume 17, Number 1 Fall 2008

(Continued on page 21)

Deposition Preparation: Use Care When Showing Documents to Witnesses ........9Stacy L. Drentlaw

A Recent French Supreme Court Decision Has Implications for E-Discovery Abroad ............................14Moze Cowper and Amor Esteban

The Evolution of E-Discovery Sanctions .........................................17Michael Swarz

Messages from the Chairs and Editors ...................................... 2

Young LawyerDocuments Don’t Talk ..........................4Erika Birg

Discrete Interrogatory Subparts under Rule 33 ....................................6Matthew Albaugh

Fundamentals of Discovery Motion PracticeBy Samuel A. Thumma

Probing Claims That Data Is Not Reasonably AccessibleBy Seth H. Row

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Probing Claims(Continued from page 1)

information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may none-theless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for discovery.

This “two-step” process has been criticized by some as dupli-cative and meaningless.2 Nevertheless, it does provide a rules-based approach to challenging the claim. The rule invites a motion to compel to test the claim.3

With a motion to compel in mind, your first step should be to insist that your opponent fully comply with the “identifica-tion” requirement of the rule. The Advisory Committee notes to the rule make it clear that a responding party invoking Rule 26(b)(2)(B) must:

identify, by category or type, the sources containing poten-tially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to eval-uate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.4

If you anticipated that this issue might arise, you may have included an instruction in your request for production demand-ing that the responding party provide those details in its response. Under the rule, these questions need not be asked in the form of interrogatories because the notes make it reason-ably clear that the responding party has the obligation to pro-vide this information at the same time that it responds to the underlying discovery request. Assuming that you did not receive that information in the discovery response, you should write to your opponent, referencing the notes and asking that additional detail be provided.5

It is important to keep in mind that Rule 26(b)(2)(B) is properly used as an objection to production of information, not to discoverability of information.6 Therefore, you should make it clear to your opponent that you understand its response to indicate that the sources to which it is referring may contain responsive information that otherwise would be discoverable under Rule 26(b)(1); that is, it has conceded that the source may contain information that is “relevant to any party’s claim of defense” and that is itself admissible or “reasonably calculated to lead to the discovery of admissible evidence.”7

But what will you do with the detailed information about the source once you have it? If your opponent takes its obliga-tions seriously, it will give you technical information about the sources it considers not reasonably accessible. At the same time that you are preparing your letter demanding a more complete identification of the sources that your opponent has refused to search, you should be preparing yourself to understand and

evaluate its anticipated response. If you have not already done so in connection with a Rule 26(f) conference, you should give serious consideration to retaining an electronic discovery con-sultant to explore the other party’s contentions.

Discovery about Discovery—“Meta-Discovery”Hopefully, the letter to your opponent garners a response that gives you information sufficient to either accept or reject the claim that certain information is “not reasonably accessible.” But let’s suppose, as is unfortunately likely, that you encounter resistance. Rather than engage in a lengthy back-and-forth by letter, consider doing some formal discovery to support your probable motion to compel.

Although courts usually dislike litigants engaging in discov-ery away from the central issue in the case, in this situation, the Advisory Committee notes to the rule will support issuing discovery on e-discovery. The notes state, in the context of a discussion about the two-step, burden-shifting analysis set out in the rule, that:

. . . the court and parties may know little about what infor-mation the sources identified as not reasonably accessible might contain, whether it is relevant, and how valuable it may be to the litigation. In such cases, the parties may need some focused discovery, including sampling of the sources, to learn more about what burdens and costs are involved in accessing the information, what the information consists of, and how valuable it is for the litigation in light of information that can be obtained by exhausting other opportunities for discovery.8

Not only do the notes to the rule specifically contemplate discovery about discovery (what some call “meta-discovery”) but several courts have also ordered such discovery when the parties could not agree. For example, in Petcou v. C.H. Robinson Worldwide, the court denied a motion to compel production of email that was alleged to be “not reasonably accessible,” but ordered discovery on the accessibility issue, and allowed the requesting party leave to refile the motion.9 In Wells v. Xpedx, the court permitted the requesting party to take a corporate representative deposition under Federal Rule of Civil Procedure 30(b)(6), regarding the producing party’s data-preservation policies and practices, its efforts to search for and retrieve responsive information, and its computer system capabilities, because the producing party failed to provide the court with

You should seriously consider retaining an e-discovery consultant to explore the other party’s contentions.

Seth H. Row is an associate with Holland & Knight LLP’s Portland, Oregon, office. He thanks Garrett Garfield, a summer associate with Holland & Knight, for his assistance in research for this article.

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sufficient information to back up its claim that data was not reasonably accessible.10

A Digression: What Data Sources Are “Not Reasonably Accessible”?Let me digress a bit to consider what kind of information you should expect from your opponent concerning its data sources. A common question from clients is what data sources may be deemed “off limits” under Rule 26(b)(2)(B). The answer to that question, like most such questions posed to lawyers, is “it depends.” No data sources are necessarily and presumptively

“not reasonably accessible,” because the focus of the rule is on the burden or cost of production from that source, not on the particular source itself. The burden or cost to the producing party may arise because of multiple factors. The cost/burden fac-tors that have been recognized by the Rules Committee, com-mentators, or courts, include:

• “forensic costs” of converting data from a format that is difficult or impossible to search or review to another more accessible format (such as the restoration of data from a backup tape)11

• the cost to review the data for responsiveness, privilege, or other concerns12

• business disruption and “internal” costs13

While much has been written about the different categories of data source media formats—for example, “active” or “online,” “nearline,” “backup,” “deleted,” or “legacy”—it is clear that under the appropriate circumstances, a party may need to pro-duce information from a source that appears to be “not reason-ably accessible.”14 Indeed, focusing on the format of any particu-lar source can lead to a good amount of confusion of the issues. For example, in W.E. Aubuchon v. Benefirst, the court began with what it called a “media-based analytical approach” to the issue of whether medical claim files were protected by Rule 26(b)(2)(B).15 The court repeated Judge Scheindlin’s explana-tion of the different categories of sources in the Zubulake cases, which she had designated as either “accessible” or “inaccessible.” The Aubuchon court ran into a problem applying that analysis to the facts before it and to Rule 26(b)(2)(B) (which was enacted after the Zubulake cases). The Aubuchon court concluded that the data source at issue—a server—was “accessible” under the Zubulake analysis; however, the court also held that the data on the server was not searchable or indexed in any meaningful way. Therefore, the court concluded that despite the media source being “accessible,” the ESI was “not reasonably accessible” under

the rule because of the time that would be required to review the data for responsiveness.

Such confusion can be avoided by focusing on the burden associated with complying with the particular discovery request, rather than the type of media on which it is stored, and by viewing the media format as but one of several considerations. Therefore, do not be content with an explanation from your opponent that no documents were produced in response to your request, reasoning that if responsive documents exist, they are on a backup tape, which is not reasonably accessible. By letting you know the media type, your opponent has only begun to answer the hard questions that you should pose to probe its claim.

Asking the Hard QuestionsWhether your opponent plays hardball and requires you to take discovery on the point, or agrees to provide information to back up its claim voluntarily, probing a claim that data is “not reasonably accessible” requires asking difficult questions about technical details, vendor relationships, and litigation planning.

Storage MediaAs noted above, simply because the data source is a media for-mat that the conventional wisdom would call “inaccessible” does not necessarily mean that discovery from the source would be unreasonably burdensome or costly. Once you learn the media type or format, you should ask additional questions to inform your analysis.

To take one common example, opposing counsel may claim that the email files of a former employee might contain respon-sive information, but that when the employee left, his or her email account was closed and the data deleted from the email server. The only place that the employee’s email might reside is on one of several backup tapes of the email server created shortly before the account was closed. Your opponent may argue that the former employee’s email files are therefore “not reason-ably accessible” because restoring and locating that data on the backup tapes would be burdensome and costly.

You should recognize that this contention rests on a premise about what backup tapes are used for, which is, generally speak-ing, recovery of data after a catastrophic loss, such as a natural disaster. But what if the opposing party uses backup tapes for purposes other than disaster recovery? What if your opponent’s system is set up in such a way that when an email file goes miss-ing, the company routinely uses the backup tape to restore the data? If that is the case, then your opponent will have a much more difficult time convincing a court that the data source is not reasonably accessible, because the company’s actual business practices make that data source seem a lot more like “nearline” storage (CD-ROMs, external hard drives) than anything else. Why would it be unreasonable for your opponent to restore email data from a backup tape in response to your targeted discovery request if it regularly does the same thing for its own business purposes?

To find out how your opponent treats backup tapes or simi-lar media, serve discovery requests asking for data from its help desk application system (a report, most likely) showing the dates and details of requests for data restoration.16 The IT help desk at most large companies will track requests for help, IT’s inves-

Probing a claim that data is “not reasonably

accessible” requires asking difficult questions.

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tigation, and the eventual solution. Alternatively, you should notice a corporate representative deposition under Rule 30(b)(6) and ask for information about requests for data restoration from users. If the corporate representative tells you that indi-vidual users frequently asked IT for help restoring data that had been accidentally deleted and that IT usually loaded data from backup tapes, that information may be significant in undermin-ing your opponent’s claim that its backup tapes are not reason-ably accessible.

You should also be savvy about the attributes of backup tapes. If your opponent claims that it will have to search thou-sands of tapes to locate the email file of one employee, ask how it reached that conclusion. Even backup tapes that are not externally labeled or indexed may include headers that can be read using a simple scan that would show the backup date and backup software (which could indicate whether the tape con-tains email or some other data type). Other simple scans may show server-level information. You should ask your opponent what kinds of analysis it has done of the backup tapes to sup-port its contention about the cost and burden of finding the requested data.

You also should discuss the use of sampling, a compromise that was specifically endorsed in the Federal Rules of Civil Procedure revisions in 2006. The Advisory Committee notes to Rule 26(b)(2)(B) suggest that discovery on the issue of acces-sibility “might take the form of requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible . . .” Sampling may involve restoring a few backup tapes selected from different time periods or locations both to determine whether any responsive or truly useful information is likely to be contained on the tapes, and to inform future discussions about cost and burden.17

The Spoliation IssueSimply because the data that you seek now resides on a media type that your opponent claims is “not reasonably accessible” does not mean that it has always been so. One line of attack in probing a claim under Rule 26(b)(2)(B) involves finding out when the ESI involved was exiled to its current home (on, say, a backup tape).

All parties have an obligation to preserve data that they rea-sonably believe is likely to be relevant to pending or anticipated litigation.18 Although Federal Rule of Civil Procedure 37(e) (formerly (f)) provides a “safe harbor” for destruction of data that occurs pursuant to the “routine, good faith operation of an electronic information system,” the Advisory Committee notes explain that the protections of Rule 37(e) do not mean that a party under a preservation obligation regarding that data may allow an auto-delete system to continue to run unchecked.19 A party may not allow a routine system operation to destroy all access to a set of data if it is under a duty to preserve that infor-mation.20

A more complicated situation arises when the data in ques-tion was not deleted, but simply moved (or, in IT parlance, “migrated”) from an easily accessible storage media to a less-accessible media, after the preservation obligation arose. For example, what if immediately after a complaint is filed in court, one of the defendant’s employees, who was at the center of the

dispute, leaves the company, and his or her email records are removed from the company’s “active” email server? After dis-covering that the employee’s email is no longer on the server, the company preserves a backup tape made of the email server immediately before the employee left the company. In that case, there probably was no “spoliation,” as the employee’s email still exists. But suppose that the company refuses to produce the email on the basis that it is “not reasonably accessible.”

In factually analogous situations, courts have held that although “downgrading” of data from active to archival or disas-ter-recovery storage media is not spoliation, the producing party will be unable to shift any of the cost of restoring the archi-val media so that it can be searched and the data retrieved.21 Therefore, it makes sense to ask questions about where the data that your opponent says is “not reasonably accessible” resided in the recent past, when that data migrated to the less-accessible media, and whether it did so as the result of a routine operation, or as the result of a conscious and specific decision.22 Although it is unlikely that the answers to questions on this topic will result in data being deemed “reasonably accessible,” it may assist you in arguing that production should be ordered nonetheless under Rule 26(b)(2)(B)’s “good cause” standard and that the producing party should bear the cost.

Cost of ReviewIn the Aubuchon case, the data being sought—static digital images of claim files—were deemed “not reasonably accessible” because those files were not indexed in such a way that respon-sive documents could be identified without the producing party having to manually review each document on the server. The responding party successfully argued that the cost of review for responsiveness was an undue burden. Similarly, in other cases, requests for ESI have been rejected or severely limited by the court where the cost of review for responsiveness (or privilege, or some other concern) was high.23

While the cost of reviewing volumes of ESI for privilege or responsiveness is repeatedly cited as one of the worst—if not the worst—side effects of the increasing prominence of electronic discovery, there is no need to blindly accept your opponent’s claims about the cost of performing that review. Instead, take the following steps to explore those claims.

First, discuss with your opponent how it determined the uni-verse of documents that require individual review. Perhaps you have already discussed the use of search terms to allow identifi-cation of responsive documents from data sources that the pro-ducing party has conceded are reasonably accessible. That is the same kind of conversation you should have about sources that purportedly are not reasonably accessible. Do not allow your opponent to argue that you were unwilling to discuss narrowing the range of data using search terms or concepts, requiring the manual review of every document. The defendants in Petcou v. C.H. Robinson Worldwide, Inc. were able to use that argument to block discovery of company email with “pornographic” or “sexual” content.24 The email was contained on backup tapes that had to be restored and then reviewed. The Petcou plaintiff would not narrow the scope of the requested data beyond the very broad, and vague, language of the request for production. Because the request would have required defendants to review

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24 Section of Litigation ♦ American Bar Association

Committee on Pretrial Practice & Discovery Fall 2008

every email to or from thousands of employees over a six-year time period, and make subjective judgments about what was “pornographic,” on top of incurring the cost of restoring the backup tapes, the court found that the plaintiff could not estab-lish good cause to order the production. Simply talking to your opponent about narrowing search terms or concepts to minimize the burden of a request may help to foreclose a contention that the cost of review renders a source not reasonably accessible.

Second, you also should ask your opponent to give you details about the individual components of its cost estimate and

look for line items that simply do not make sense. Is the other party proposing that a team of associates, each billing $300 per hour, perform the review? Has it considered outsourcing review to one of the many companies that will provide contract attor-neys to perform review (at a third the cost of big-firm associates) or off-shoring the review at an even lower cost? Is it paying for online hosted review, or is it proposing to use an in-house review tool? What is its vendor proposing to charge for process-ing, hosting, or production? Is it planning on creating TIFF files of all of the documents prior to review or only those that are selected for production?

The reasonableness of your opponent’s projected cost will depend on the sensitivity of the review,25 the size of the job, and the resources available to your opponent, all of which the other party should be prepared to share with you and your experts. If your opponent does not share that information with you, it likely will have to share the information with the court.26 If you can use that information to generate cost estimates or bids from your own vendors that are dramatically lower, it may be possible to remove the cost of review as a factor in the accessibility analysis.

Probing a claim that data is “not reasonably accessible” under Rule 26(b)(2)(B) involves, first, understanding that the rule and the Advisory Committee notes provide a mechanism for resolv-ing such disputes that contemplates discovery on the issue, and, second, asking hard questions of your opponent about the basis for its claim. One overriding trend in court decisions on acces-sibility issues is to demand that parties disclose to each other, and thoroughly discuss with each other, the details involved in the dispute before they come to court. Those details may be confusing and require the assistance of consultants. However, attorneys owe it to their clients and the courts to diligently pursue negotiated resolution of accessibility issues so that the information that is necessary to resolve each case on its merits

can come to light, without unnecessary cost or delay. An added benefit to full disclosure is that if a motion to compel is neces-sary, an exchange of ESI details will give the parties and the court the information necessary to reach the right decision.

Endnotes1. Fed. R. Civ. P. 26(b)(2)(B).2. See Henry S. Noyes, Good Cause Is Bad Medicine for the New E-Discovery Rules, 12 Harv. J. Law & Tech. 1 (Fall, 2007), available at http://jolt.law.harvard.edu/articles/pdf/v21/NOYES_Good_Cause_Is_Bad_Medicine.pdf.3. The reference to resolving the dispute by either a motion to compel or motion for protective order makes it clear that the rule’s drafters did not intend for judges to penalize the producing party for failing to bring a motion for protective order upon receipt of the objectionable request.4. Fed. R. Civ. P. 26(b)(2)(B) Committee Note (2006). The duty to provide detailed information as part of the “identification” of sources that have not been searched is discussed in a recent publication of The Sedona Conference’s working group on electronic discovery. See The Sedona Conference Commentary on Preservation, Management, and Identification of Sources that are Not Reasonably Accessible (The Sedona Conference Working Group Series, August 2008), Guideline 3.5. Keep in mind that to comply with Rule 26(b)(2)(B), the responding party need not provide the level of detail expected in a privilege log. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, 2d ed. June 2007), cmt. 4.b. However, a general assertion of burdensomeness is insufficient. See, e.g., City of Seattle v. Professional Basketball Club, LLC, No. C07-1620MJP, 2008 WL 539809, *3 (W.D. Wash. 2008).6. See generally Noyes, supra note 1, for a comparison of Rule 26(b)(1) and Rule 26(b)(2)(B). 7. Fed. R. Civ. P. 26(b)(1).8. Fed. R. Civ. P. 26(b)(2) Committee Note (2006).9. Petcou v. C.H. Robinson Worldwide, No. 1:06-CV-2157-HTW-GGB, 2008 WL 542684, *1 (N.D. Ga. Feb. 25, 2008). 10. Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. April 23, 2007). Wells and other cases show that a responding party may be able to thwart a motion to compel by making a full and detailed disclosure to the opponent and the court of the basis for its claim that data is not reasonably accessible. See, e.g., E.E.O.C. v. Boeing Co., No. CV 05-03034-PHX-FJM, 2007 WL 1146446, *3 (D. Ariz. Apr. 18, 2007).11. See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), available at http://thepocketpart.org/2006/11/30/rosenthal.html.12. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, 2d ed. June 2007), cmt. 13.a (“[C]onsideration of the ‘total cost of production’ includes the estimated costs of reviewing retrieved documents for privilege, confidentiality, and privacy purposes.”). Note also that different attributes of data may be more easy or less easy to review. For example, if metadata needs to be reviewed, the cost of review may be higher if the metadata is not susceptible to term or concept searching.13. Id. (“‘ . . . total cost of production’ includes . . . consideration of opportunity costs or disruption to the organization.”).14. Id. (“The types of information that typically may (but not always) fall within Rule 26(b)(2)(B) include deleted data, disaster recovery/backup tapes, residual [deleted] data, and legacy data.”).15. W.E. Aubuchon Co. v. BeneFirst LLC, 245 F.R.D. 38 (D. Mass. 2007).16. Jeffrey J. Beard, Breaking Through the Inaccessibility Wall, Litig. Support Today, Feb./Apr. 2008, at 16.17. See, e.g., Delta Fin. Corp. v. Morrison, 13 Misc. 3d 604, 819 N.Y.S.2d 908 (N.Y. Sup. 2006).18. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, 2d ed. June 2007), cmt. 5.a . Note

Attorneys owe it to their clients and the courts

to diligently pursue negotiated resolution of

accessibility issues.

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that Comment 5.h. states that backup tapes ordinarily should not be subject to a litigation “hold” because, presumably, efforts will be made to preserve data in “active” storage, making preservation of backup tapes redundant.19. Fed. R. Civ. P. 37(f) Committee Notes (2006).20. The Sedona Conference Commentary on Preservation, Management, and Identification of Sources that are Not Reasonably Accessible (The Sedona Conference Working Group Series, August 2008), Guideline 1at 6. (Noting that with regard to a party’s duty to preserve data from identified sources prior to the initial conference of counsel “[i]f the source in question is not reasonably accessible, it may nonetheless still have to be preserved if the producing party does not have a reasonable belief that the information is available on other, more accessible sources.”)21. Quinby v. WestLB, 245 F.R.D. 94 (S.D.N.Y. 2006), modified, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007). See also AAB Joint Venture v. United States, 75 Fed. Cl. 432, 433–444 (2007) (noting that government should not benefit from choice to store email on backup tapes for archival purposes, and limiting cost-shifting accordingly); Best Buy Stores, L.P. v. Developers Diversified Realty Corp., No. 05-2310(DSD/JGG), 2007 WL 333987 (D. Minn. Feb. 1, 2007) (Best Buy was not under an obligation to maintain database created for prior litigation in searchable format at high monthly cost, although company should have anticipated that discovery would be sought of database in future litigation); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003); see also The Sedona Conference Commentary on Preservation, Management, and Identification of Sources that are Not Reasonably Accessible (The Sedona Conference Working Group Series, August 2008), Guideline 4.

22. The same questions could be asked when presented with an objection under Rule 26(b)(2)(B) based on the source being a so-called “legacy” system. A “legacy” system is software or hardware that has become obsolete or replaced. See The Sedona Conference Glossary for E-Discovery and Digital Information Management (The Sedona Conference, 2005) at 26. Examples include database software for which the company no longer has a license, or which runs on an operating system that is no longer used. Difficulties involving legacy systems also frequently involve backup tapes, as reading data from a backup tape may be nearly impossible if the software that was used to create the data in the first place is “legacy.” In addition to the “spoliation” type questions suggested above, when confronted with a claim of a legacy system, the requesting party should ask their opponent about such things as whether the original software or software manuals were retained.23. See, e.g., In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 WL 2458720 (N.D. Cal. 2006) (approving use of proposed search terms that would narrow the universe of documents that would require review for privileged documents).24. Petcou, 2007 WL 542684, *2.25. The American Bar Association recently released an ethics opinion addressing the outsourcing of legal work, including document review, in which it recognized that the practice can be a legitimate cost-control method. See ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 08-451 (August 5, 2008) (lawyer’s obligations when outsourcing legal and nonlegal support services).26. See Thompson v. Jiffy Lube Int’l, Inc., No. 05-1203-WEB, 2006 WL 1174040 (D. Kan. May 1, 2006) (ordering parties to supply more information to support conclusory allegations about cost of review).

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