During discovery, parties often use search terms to separate the wheat from the chaff, i.e., the irrelevant or unresponsive data from the relevant or responsive information. The sheer volume of electronic material makes the use of search terms a necessity, but, as with many conveniences, there is some risk involved. The key may be in agreeing to share search terms that will improve the process without showing your hand.
It is impossible for counsel to look at every single document that is part of a large-scale e-data review, but it is also unacceptable to blindly produce documents to the opposing party. Search terms are perfect for bridging this gap.
Attorneys develop search terms by reviewing important documents and determining what words and phrases are most significant to the claims and defenses in the case. Arriving at search terms is the result of a lot of work and preparation. As a Law.com article explains
In the digital age, search terms are the crystallization of the lawyer’s mental impressions, akin to a short memo summarizing the important points of the case.
It is this aspect of search terms that makes their revelation to the opposing side so tricky. As the Law.com article explains, parties may choose to voluntarily exchange search terms with each other to “increase transparency, ensure that documents are not excluded and limit the cost of discovery.” Counsel should consider talking at the beginning of the case with opposing counsel about the search terms and document custodians or locations; the results of this discussion can be used to focus review on the most likely to be relevant documents.
There is, however, a potential risk in counsel stipulating to search terms. Under federal electronic discovery statutes, which provided a model for California’s legislation, a federal agency had stipulated that plaintiffs could select “appropriate search terms.” But the court held that this did not limit the search and, even though the search terms resulted in a retrieval of 80 percent of the agency’s e-mail, the court held the agency in contempt for not keeping to the terms of the stipulated order. In re Fannie Mae Sec. Litig. (2009) 552 F3d 814, 818.
Parties stipulating to sharing search terms is one thing, but courts mandating disclosure of search terms is quite another. As the Law.com article explains, there is a worrying trend of forced disclosure of search terms by courts.
How do you handle search term disclosure? Has stipulating with the opposition been successful for you? What do you think of this trend toward court mandated search term disclosure?
For everything you need to know about document production and e-discovery, turn to CEB’s California Civil Discovery Practice, chap 8. Also check out CEB’s programs New Strategies for Winning the Electronic Document Production War and Everything You Need To Know To Be Ready For Trial, both available On Demand.
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