EMERGING ISSUES
Case Law Alert: Can’t Decide on Search Terms in Discovery? Find an Expert By Mike Hamilton, Vice President, E-Discovery
As more data is created and stored—and thus eligible for discovery—search techniques have become a breeding ground for disputes on which parameters best identify relevant information. McMaster v. Kohl’s Department Stores, Inc. furthers that conversation and emphasizes the need for cooperation and the importance of leveraging third-party experts to identify appropriate solutions. OVERVIEW In this ADA case, the plaintiff motioned to compel discovery, but the two parties could not agree on the search terms the defendant would apply to the data collected during e-discovery. The discovery dispute related to whether a custodian’s emails should be produced, and if so, what search terms should be included to decipher which documents should be collected. The specific search terms in dispute revolved around date ranges and keywords.
RULING • Court rules in part for the plaintiff. The court ordered that the parties would have to employ an expert to assist them in identifying limited search terms if they could not come to agreement on their own. • Cooperation a Key Part of the Ruling. The judge quoted the Sedona Conference Cooperation Proclamation. “All stakeholders in the system — judges, lawyers, clients, and the general public — have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge. It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect.” • Court Acknowledged the Complexity of Keyword Search Terms. Quoting a prior decision (albeit from 2008), the judge noted that identifying search terms to unearth relevant data was a tricky feat. “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.”
EXPERT ANALYSIS FROM HON. ANDREW PECK (RET.), SENIOR COUNSEL, DLA PIPER Lawyers should not attempt to craft effective search terms in a vacuum. They must know the language used by the custodians whose files are being searched. Are their emails formal, or do they use lots of abbreviations and acronyms, and even gifs and emojis? How can the court decide which party’s suggested keywords are appropriate without data from testing of the proposed keywords? Counsel need to cooperate in the crafting and testing of keywords. CASE LAW TIP Case Law Tip: Have questions on how the FRCP applies to e-discovery? Download this FRCP E-Discovery Quick Guide at https://www.exterro.com/resources/frcp-e-discover y-pdf-guide to get all your questions answered.
With a legal and business background, MIKE HAMILTON is experienced and passionate about creating thoughtful, out-of-thebox educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.
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