Special Master Determines Microsoft Purview Does Not Comply With FRCP 26(g) Due to Unreliable and Incomplete Search Results

By John Patzakis
August 1, 2023

Recently, Special Master Phillip Favro appointed by a federal district court in a pending case Deal Genius, LLC vs. O2Cool, LLC, 21 C20156, (N.D. IL) issued a published report with significant implications concerning whether attorneys can comply with the reasonable inquiry requirement under Federal Rule of Civil Procedure 26(g) when Microsoft Purview is used to collect ESI from MS 365 data sources.

Special Master reports are not actual court rulings but still carry weight, especially when, as here, they are published and adapted by the court. Phillip Favro is an experienced eDiscovery attorney, expert witness, and special master. He is a nationally recognized scholar on electronic discovery, with courts and academic journals citing his articles.

The report stemmed from a hearing where Special Master Favro took issue with the sufficiency of the eDiscovery efforts of Plaintiff Deal Genius, who relied on Microsoft Purview eDiscovery to search, identify, and collect relevant emails and documents from their MS 365 environment, and expressed concern that Deal Genius’ efforts “did not satisfy the duty of reasonable inquiry under Federal Rule of Civil Procedure 26(g)(1).”  Rule 26(g)(1) requires an attorney to certify in writing that discovery response “to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry… is complete and correct as of the time it is made.”

The Special Master then determined as follows:

“As the Special Master understands it, Deal Genius conducted its searches for relevant email on its Microsoft 365 platform. Microsoft 365 allows users to both generate and maintain data in a cloud-based repository. Microsoft 365 has functionality that allows users to conduct searches for particular information. However, Microsoft 365 has technological limitations that may not allow a responding party to generate reliable search results—as would typically be possible with an electronic discovery platform that has a fully indexed database and an advanced search engine—and thus satisfy the Rule 26(g) reasonable inquiry standard. Some of the limitations with Microsoft 365 at issue in the present dispute include the following:

  1. Microsoft 365 generally does not fully index the data encompassed within an organization’s Microsoft 365 environment.
  2. Microsoft 365 does not accommodate complex Boolean searches, including certain wildcard operators, proximity operators, or connector terms, nor cannot it (sic) handle “fuzzy logic” searches.
  3. Microsoft 365 does not allow users to validate their search and production results.”

This is not the only instance of significant negative industry peer review of MS 365 Purview. The eDiscovery Journal also notes that Microsoft Purview “can struggle to meet the stringent eDiscovery/compliance requirements.” Specifically, the author determined that Microsoft Purview faces significant throughput limitations as documented by his own performance testing.

The criticism from both Special Master Favro and The eDiscovery Journal of Microsoft Purview is why X1 Enterprise Collect takes a direct collection and index-in-place approach when addressing MS 365 data sources. X1’s data collection is more comprehensive, and its index provides for the “advanced search engine capabilities” identified by Special Master Favro including the requisite complex Boolean searches, wildcard operators, proximity operators, connector terms, and “fuzzy logic” searches needed to comply with FRCP 26(g)(1).

Practitioners should also be aware that many other third party collection tools have connectors that simply piggyback off of the Microsoft eDiscovery and Graph search APIs, and thus, unlike X1, face the same fatal limitations.

The X1 Enterprise Collect Platform is available now from X1 in the cloud, on-premise, or on-demand.  For a demonstration of the X1 Enterprise Collect Platform, contact us at sales@x1.com. For more details on this innovative solution, please visit www.x1.com/x1-enterprise-collect-platform.