An article in the New York Law Journal entitled Court Issues ‘Wake-Up Call’ On Slipshod Search Terms (password required) makes clear that formulating proper keyword searches is not just an academic exercise. This is especially so in a time when attorneys are required to design search terms for electronic discovery of emails and other electronically stored information (ESI). The article cites an opinion and order by U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York in which, the magistrate, weary of deficient keyword searches, recently issued a self-styled “wake-up call” to members of the bar in the Southern District. Magistrate Judge Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation rather than attorneys designing keywords without adequate information “by the seat of their pants”.
The opinion was issued in William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co. a case involving multiple parties and multi-million dollar claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice. Describing this case as “just the latest example of lawyers designing keyword searches in the dark,” without adequate discussion with those who wrote the e-mails, Magistrate Judge Peck cited to prior warnings about this problem from judges in other courts. In his view, these prior warnings had not gotten through to the bar in the Southern District. The earlier warnings were tailored to the different circumstances of those cases, but Magistrate Judge Peck apparently thought them equally applicable across the spectrum of electronic discovery issues.
Magistrate Judge Peck’s opinion stressed four requirements for the production of ESI.
· There must be cooperation between opposing counsel. Therefore, he strongly endorsed The Sedona Conference Cooperation Proclamation.
· Second, attorneys must carefully design the appropriate keywords.
· Third, these keywords should be selected with the input from the ESI’s custodians.
· Finally, the proposed technique should be validated to ensure it is not substantially over-inclusive or under-inclusive.
In the conclusion of his opinion, Magistrate Judge Peck wrote:
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives”. It is time that the Bar – even those lawyers who did not come of age in the computer era – understand the importance of properly crafted electronic searches.