Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01266-SLR Document 147 Filed 08/O4/2005 Page 1 of 3
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August 4, 2005
BY HAND DELIVERY
The Honorable Sue L. Robinson
United States District Court
844 N. King Street
Wilmington, DE 19801
Re: Teleglohe Communications Corporation, et al. v. BCE inc., et ci!.
CA. No. 04··CVy·i266
Dear Chief Judge Robinson:
We write in response to Ms. Gaza’s letter to the Court of August i, 2005
concerning the Debtors’ requested "2900 folder" search.
First, to put this issue in proper context, Plaintiffs requested a search of
approximately 4400 folders in May 2005 after Defendants had already conducted two broad
electronic searches of their custodians’ files. Those two searches are set forth in detail in the
Declaration of Mr. Felsky, tiled with the Court on May 9, 2005. In summary, in the initial
search (entitled Search 1), Defendants searched for documents that contained the terms
Teleglobe (or a variation of that term) and a iist of 147 search terms. In the second "negative”
search (entitled Refined Search 2), Defendants searched for responsive documents that related to
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Court and the parties discussed those searches, and the Court noted that it was *‘astounding" that
"people in business can talk about a transaction without identifying the parties to the
transaction? (See 4/25/05 Hearing Tr. at 16.) Indeed, ofthe 32,064 documents we reviewed
that were captured by Refined Search 2, only 6% were responsive.
After Defendants conducted Search 1 and Refined Search 2, Plaintiffs requested
that BCE run several additional "negative’? searches. Specifically, Plaintiffs requested that we
conduct such searches in (I) 3500 unidentifiable server foiders to which the custodians had
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Case 1:04-cv-01266-SLR Document 147 Filed 08/04/2005 Page 2 of 3
Youno Counwnv Srnnonrr & Tamron, rrr
The Honorable Sue L. Robinson
August 4, 2005
Page 2
access ("Tab A"), (2) 420 hard drive folders (""l`ab B"), and (3) close to 500 identifiable
custodian server folders (‘°'l`ab C"). After consulting with our lT expert, Martin Felsky, we
determined that the requested folder searches would not be practicable, as this would require a
manual retrieval and search of each of the over 4000 individual folders selected — a process that
would be costly and time·~consurning and would require a substantial amount of attorney review
time to filter out the responsive documents. We informed the Plaintiffs that we would be willing,
in the spirit of compromise, to run the requested Tab B and Tab C searches·——which we have
since conducted-—but that we were unwilling to conduct the Tab A search unless Plaintiffs could
reduce the selected folders to a more manageable number. Mr. Felsky’s Supplemental
Declaration, filed on August 1, 2005 ("Felsky Supplemental Declaration") (D.l. l45), sets forth
the additional "negative” searches that Defendants have conducted in Tab B and Tab C since Mr.
Felsky’s original Declaration was filed.
Plaintiffs subsequently reduced the number of Tab A folders from 3500 to 2900 -
a number that, though slightly reduced, failed to eliminate any of the problems that we had
previously identified. On July 22, 2005, Ms. Gaza sent to Mr. Schimmel a list of search terms
and insisted that BCE run those searches in those 2900 folders in Tab A. We consulted with Mr.
Felsky to determine whether the search method proposed by Ms. Gaza at the July 7, 2005 `
hearing could be used to run searches effectively and efficiently in the 2900 folders and avoid
some ofthe cost and time issues that we had previously raised. As the Court may recall, during
the July 7 hearing, Ms. Gaza suggested that there might be a way to combine all the folders into
one central folder upon which the searches could be conducted and thus avoid the problem of
having to search each ofthe 2900 folders manually. When we raised this new proposed search
method with Mr. Felsky, however, he informed us that such a method would not be practicable
in our case, since it would only work using raw data, whereas the data we had in our possession
was processed data residing in a database that could not be moved around in the way that Ms.
Gaza had suggested. This is described in the Felsky Supplemental Declaration at ‘ll‘ll l 1-l 5.
In addition, Mr. Felsky noted that the Debtors’ proposed search terms were still
too broad, consisting merely of a string of terms located in certain proximity to each other. (@
Felslcy Supplemental Declaration at il 14.) Thus, even if the data in the 2900 folders could be
manipulated in the way that Ms. Gaza suggested, the proposed searches indeed are much broader
and far less contextual than the search phrases previously applied in the Refined Search 2 and
would capture a large number of irrelevant documents. Nevertheless, all of the documents
captured in that fourth search would be subject to a costly and time-consuming attorney review
to determine their responsiveness. Given the demonstrated diminishing returns from the
searches already performed and the fact that Defendants had already conducted three separate

I The Debtors make much ofthe fact that approximately 645 ofthe 2900 folders contain the word
“'l`eleglobe" or some derivation thereof. However, Search l was already performed on the full text of
- documents as well as on folder names, such that the document would already have been retrieved and
produced if the word "'l`eleglobe" (or any variants) appeared in a folder name, or a document in that
folder contained any ofthe search terms. Accordingly, ?laintiffs’ application only calls for a fourth
"negative" search.
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Case 1:04-cv—O1266—SLR Document 147 Filed 08/O4/2005 Page 3 of 3
YoUNo CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Sue L. Robinson
August 4, 2005
Page 3
To the extent that the Court determines that a search of these 2900 folders should
be conducted, We believe that the list of search terms and phrases applied in the Refined Search 2
and attached as Exhibit C to Mr. Felsky’s original Declaration (resubnaitted to the Court on
August l, 2005 as Exhibit A to the Felsky Suppiernental Declaration) would be the more
effective search.
We are prepared to discuss this issue in more detaii at the discovery conference
scheduled for August I0, 2005 at 5:00 p.m. Shouid the Court have any questions or require any
additional information in the meantime, we are available at the Court’s convenience.
Respectfully,
“ Pauline K. Morgan
PKM:dw
Enclosure l
cc: Kevin Gross, Esq. (by Hand Delivery)
Kohn P. Amato, Esq. (by Facsimile)
C. Malcolm Cochran, IV, Esq. (by Hand Delivery)
Anne Shea Gaza, Esq. (by Hand Delivery)
George Wade, Esq. (by Facsimile)
Jaculin Aaron, Esq. (by Facsimile)
Daniel Schirnmel, Esq. (by Facsiiniie)
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