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Court’s Opinion a “Wake-Up Call” About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

Posted in CASE SUMMARIES

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 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.