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Wednesday, March 25, 2009

Lawyers, Stop Winging It With ESI Keyword Searches

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Apparently there is a great problem out there with lawyers writing keywords in electronic discovery requests. According to one magistrate judge, lawyers in a construction liability case submitted vague keywords that produced nearly all of the opposing side's e-mail database, redundant keywords, and keywords that were ineffective at producing discoverable information. This kind of bad lawyering put the magistrate in the position of having to design the keyword search himself, something he was neither inclined nor equipped to do.

In William A. Gross Construction Associates Inc. v. American Manufacturers Mutual Ins. Co., No. 07 Civ. 10639 (S.D.N.Y. March 19, 2009), Magistrate Judge Andrew Peck complained:

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce emails or other electronically stored information ("ESI"). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

...

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.

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