## Facts

- ClearOne Communications, Inc. sued Andrew Chiang and WideBand Solutions, Inc., alleging misappropriation of ClearOne’s proprietary audio-conferencing technology known as “Honeybee.”
- The court previously ordered forensic imaging of certain computers and adopted an ESI search protocol governing keyword searches of the mirror images and subsequent privilege and responsiveness review.
- The protocol contemplated that experts would run keyword searches; defense counsel would screen hit reports for privilege; plaintiff’s counsel would make preliminary responsiveness determinations; defense counsel would re-review for responsiveness and privilege; and responsive materials and a privilege log would be produced.
- The parties agreed on most search terms, but disputed (1) whether to add five Honeybee-related terms and (2) whether certain categories of terms should be combined conjunctively (AND) or disjunctively (OR).
- After a similar earlier request was denied, ClearOne filed a second motion seeking entry of a refined search protocol order.

## Issues

1. Whether the search protocol should incorporate ClearOne’s additional Honeybee-related search terms.
2. Whether searches should require conjunctive combinations (AND) among categories of terms, or allow disjunctive treatment (OR/separate searches), to balance overbreadth against the risk of missing relevant ESI.

## Decision

- The court granted the motion in part and denied it in part, further refining the search protocol rather than adopting either party’s proposal wholesale.
- The court allowed incorporation of Honeybee-related search terms into the protocol.
- The court required “Name” terms to be searched conjunctively with “Tech” terms (Name AND Tech) to avoid flagging virtually all documents at a small company.
- The court required “License” terms to be searched separately (disjunctively from Name/Tech combinations), concluding that forcing License terms into conjunctive combinations risked an excessively narrow search that could miss important licensing communications.
- The court rejected arguments that broader search terms were improper due to potential jury prejudice, treating admissibility concerns as distinct from discovery identification and review.

## Legal Principles

- Courts may actively manage and refine ESI keyword-search protocols to balance burden, over-inclusiveness, and the risk of under-inclusive searches.
- Where a category of terms (e.g., employee names) is likely to appear in most documents, conjunctive connectors (AND) may be required to reduce nonresponsive hits.
- Where a category of terms (e.g., licensing terminology) is expected to occur infrequently, separate or disjunctive searching may be required to avoid missing relevant materials.
- Concerns about prejudicial effect at trial generally do not control the structure of discovery searches; privilege, relevance, and evidentiary screening occur after search results are identified.

## Conclusion

The court refined the parties’ ESI search protocol by adding Honeybee-related terms and ordering a two-track approach: conjunctive searches for Name AND Tech terms to control overbreadth, and separate searches for License terms to avoid unduly narrowing discovery of potentially significant licensing evidence.


ClearOne Commc’ns, Inc. v. Chiang, No. 2:07-CV-37, 2008 WL 920336 (D. Utah Apr. 1, 2008)