Judge Williams issued a lengthy decision today in GlaxoSmithKline Biologicals SA v. Pfizer Inc., C.A. No. 24-512-GBW (D. Del.), addressing a number of disputes relating to proposed protective and ESI orders in multiple related actions.
There is a lot of interesting material in the decision, but one ruling in particular caught my eye, because it's an issue that comes up a lot: whether a party has to use search terms to search ESI.
Most, but not all, of our judges have adopted the Court's Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI")—a document that, despite it's catchy name, is usually referred to as the "Default Standard."
The Default Standard places the option of using search terms in the producing party's hands:
If the producing party elects to use search terms to locate potentially responsive ESI, it shall disclose the search terms to the requesting party. Absent a showing of good cause, a requesting party may request no more than 10 additional terms terms to be used in connection with the electronic search. Focused terms, rather than over-broad terms (e.g., product and company names), shall be employed. The producing party shall search (i) the non-custodial data sources identified in accordance with paragraph 3(b); and (ii) emails and other ESI maintained by the custodians identified in accordance with paragraph 3(a).
Thus, producing parties sometimes decide not to use search terms, and to instead review and produce their ESI the old-fashioned way (potentially including hours of brutal contract-attorney document-by-document review).
Occasionally the opposing party will ask the producing party to use search terms. In cases governed by the Default Standard, I would expect a producing party to feel little pressure in responding "no," since the Default Standard recognizes that using search terms is optional.
In GlaxoSmithKline, however, the Court went a different way. It held that in a "complex matter," the parties must agree to a protocol that includes using search terms. They cannot just elect to do it the old-fashioned way:
Sixth, and now regarding the parties' proposed Electronically Stored Information ("ESI") Order, "Moderna proposes that 'at a minimum' the parties should agree to use search terms to locate potentially responsive ESI." . . . In response, Glaxo contends inter alia that the "[default ESI Standard allows parties to use search terms but recognizes there are other efficient means of identifying responsive content." . . .
While there is no "per se obligation" to use ESI search terms, parties must "comply with discovery obligations." . . . . Here, Glaxo fails to "provide[] a workable alternative" (id.) to using search terms and, instead, merely proposes that it "will produce relevant, responsive, non-privileged documents in proportion to the needs of the case as they are kept in the ordinary course of business, to the extent such documents are located after a reasonable search" . . . . Glaxo's proposal is insufficient in a complex matter like this action. Accordingly, the Court will order the parties to meet and confer to negotiate the use of search terms. During that conference, the parties shall consider the provisions in the Court's Default Standard for Discovery, Including Discovery of Electrically Stored Information.
GlaxoSmithKline Biologicals SA v. Pfizer Inc., C.A. No. 24-512-GBW, at 12-13 (D. Del. May 30, 2025).
This is interesting for several reasons. First, reading the Default Standard, the use of search terms is presented as a way for a party to reduce its discovery burden. The Default Standard implies that a party may use other, more-burdensome options at its own discretion. But this decision seems to impose the less-burdensome option on a party.
Second, it's pretty rare to see the Court depart from the Default Standard in cases where it applies, even in complex cases, absent a specific finding of good cause. But the Default Standard is also over a decade old at this point, and maybe we'll be seeing more of these kinds of decisions as technology and the global norms around e-discovery change.
Third, it's notable that, while the Court said that the parties "shall consider" the search term protocol in the Default Standard, it did not order that they apply that protocol.
Out-of-town counsel often ask whether they are required to negotiate an ESI stipulation. The answer is generally no, if the case is governed by the Default Standard. But a rule that complex cases require a search term protocol discovery beyond that of the Default Standard will likely encourage more parties to negotiate (or request that the Court impose) these sorts of ESI protocols.
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