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Sent to you by pakurilecz via Google Reader: Court's Opinion a "Wake-Up
Call" About the Need for Careful Deliberation and Cooperation in
Crafting Search Terms via Electronic Discovery Law by
[log in to unmask] (K&L Gates) on 3/24/09
William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co.,
2009 WL 724954 (S.D.N.Y. Mar. 19, 2009)

This case arose from disputes over alleged defects and delay in the
construction of the Bronx County Hall of Justice. In the course of
litigation, The Dormitory Authority of New York (“DASNY”) agreed to
produce the relevant documents of the non-party construction manager,
Hill International (“Hill”). Disagreement arose amongst the parties,
however, regarding appropriate search terms to segregate project
related emails from Hill’s unrelated emails. Hill, despite being in the
best position to contribute, suggested no potential search terms and
the court was forced into the “uncomfortable position” of crafting a
search without adequate information.

Having been put in such a position, the court took its opportunity to
write a brief opinion addressing the need for care and collaboration in
crafting search terms in light of its assessment that “the message has
not gotten through.” First, the court presented an excerpt from an
opinion of Magistrate Judge Paul Grimm, regarding the proper selection
and implementation of terms:
While keyword searches have long been recognized as appropriate and
helpful for ESI search and retrieval, there are well-know limitations
and risks associated with them, and proper selection and implementation
obviously involves technical, if not scientific knowledge.
* * *
Selection of the appropriate search and information retrieval technique
requires careful advance planning by persons qualified to design
effective search methodology. The implementation of the methodology
selected should be tested for quality assurance; and the party
selecting the methodology must be prepared to explain the rationale for
the method chosen to the court, demonstrate that it is appropriate for
the task, and show that it was properly implemented.

Next, the court excerpted an opinion of Magistrate Judge Facciola,
taking the warning even further:
Whether search terms or "keywords" will yield the information sought is
a complicated question involving the interplay, at least, of the
sciences of computer technology, statistics and linguistics. Given this
complexity, for lawyers and judges to dare opine that a certain search
term or terms would be more likely to produce information than the
terms that were used is truly to go where angels fear to tread. This
topic is clearly beyond the ken of a layman and requires that any such
conclusion be based on evidence that, for example, meets the criteria
of Rule 702 of the Federal Rules of Evidence.

Having considered the prior opinions, the court observed that “the best
solution in the entire area of electronic discovery is cooperation
among counsel.” It then “strongly endorsed” The Sedona Conference®
Co-operation Proclamation (available at www.TheSedonaConference.org).
The opinion then concluded:
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 this.

A copy of the full opinion is available here.

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