I have written in the past about the importance of Search in today’s litigation (“Are Search Technologists a Foregone Conclusion” and “The Role of Search in E-Discovery-Guidelines that Lawyers Need to Consider”. There continues to be a growing body of case law regarding search technology and search terms that makes it imperative for attorneys to be aware of the implications of a poorly executed document strategy.
Lawyers need to become better versed in search term construction and the need to include expertise in linguistics, statistics and computer science in creating effective and defensible search terms. Courts are beginning to question the validity of key word searches that have been presented to define case strategy and have further questions the ability of lawyers to craft searches without the assistance of technology experts.
In fact, I strongly believe that the “practice” of search as part of electronic discovery has evolved into the “art” of search and is rapidly evolving into the “science” of search. A recent case, Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the parties disagreed over the development and use of keyword searches to provide correct results from the data. The defense argued that the search terms required a precise match between the limited set of search terms and the ESI, while the plaintiffs argued that the preset set of narrowly defined search terms would artificially limit the volume of discoverable information and therefore not be responsive.
The Court took the time to base their analysis on one of the seminal cases in this area of law, Victor Stanley, as well as information from the Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods. From Victor Stanley, the court focused on the language that search terms are “appropriate and helpful” for performing electronic discovery searches but that they also have “well-known limitations and risks”. From the Sedona Commentary, the court quoted some limitations and risks exist because “keyword searches identify all documents containing a specified term, regardless of context”. The Court concluded that limited, precise search term searching alone could simultaneously be both over and under inclusive results based on retrieving irrelevant information and missing relevant documents due to simple misspellings.
Specific Issues Addressed by the Court
1. Fear of producing privileged information
The Court rejected the defendant’s objection regarding the production of privileged information using the proposed search terms. The Court pointed to the extensive case precedent that existed which allows a producing party to create a privilege log to exclude documents that would otherwise fit the search term results. If responsive information is also privileged, a privilege log must be created and provided to exclude documents from production.
2. Search Terms would include ‘only irrelevant information’
Defendant’s argued that the search terms selected would include ‘only irrelevant information’. The Court found the argument meritless and without any foundation in fact since there was no support provided for what the Court determined was a conclusion with no supporting 3evidence.
3. Limited response of search terms
The Court determined that the Defendants’ proposed search terms would be “problematic and inappropriate” since it would likely limit the responsive ESI to exact search term matches, including “phrasing, capitalization, or both.” The result of using such a set of search terms would be an incomplete production because discoverable material would be rejected for reasons such as capitalization or unexpected phrasing of the search terms in the discovery material.
The Take Way
What is the importance of this ruling for the legal community? I believe it further underscores the need to recognize the growing importance of the “science” of in today’s litigation. .Before an objection is raised about the creation of search methodology; there must be a true legal basis for the objection. Merely having concern about the production of damaging information does not meet the accepted criteria. In order to craft an objection that will be entertained by the court, you must have the appropriate back up documentation to prove your point. .Much of this back up documentation is technical in nature and must be provided by an “expert” who understands the limits of certain technology or processes.
Even better than being reactive to a search dispute is to be proactive by working with search experts throughout the entire ESI process. This will help assure that you produce what you are required to without producing that which is not. Search technology is indeed a science, and therefore lawyers need to join forces with experts to properly perform their legal obligations. It is a rapidly changing area of expertise that requires the dedication and experience to stay current in the filed. It is indeed a different skill set that is outside the training of most practicing attorneys.
Drafting a well thought out search methodology requires a close collaboration between the subject matter expert (the attorney) and a technology expert (the search consultant). While it does cost money to retain the services of a search technologist, they can often save much more than their cost in reduced document production and decreased challenges from the opposition. As the field moves further into new forms of technology to assist in controlling the rising costs of EDiscovery (concept searches, predictive coding, linguistics and ultimately artificial intelligence), it may well require collaboration between attorney and technologist.
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