craig ball
ARE KEYWORDS JUST FILTERS?
When trial counsel hammer out agreed-upon search
terms, does that define the discovery process?
Is keyword search a filter prefatory to review or a proxy for review? It’s a question you’ll soon face. When
counsel hammer out agreed search
terms and queries to run against elec-
tronically stored information, request-
ing parties often expect that any respon-
sive item (that is, all “hits”) must be pro-
duced unless withheld as privileged.
Put another way, requesting parties fre-
quently believe that by agreeing to the
use of a set of keywords as a proxy for
attorney review, those agreed searches
serve as a de facto request for produc-
tion and define responsiveness per se,
requiring production if not privileged.
» “Requests for Production, not keyword hits, define scope of discovery!”
» “Nothing in the rules or the case
law requires us to produce non-responsive items!” [Expletives omitted]
Perhaps, but there’s sufficient ambiguity surrounding the issue to prompt
prudent counsel to address the point
explicitly when negotiating keyword
search protocols and drafting memorializing agreements. Different expectations flow from different incentives
behind agreements to confine the scope
of search using queries and key words:
» Federal law requires producing
parties to search all reasonably accessible sources of ESI that may hold responsive information — a broad mandate.
It’s no wonder producing parties seek
agreements to limit the scope of review
to only items with keyword hits. It eases
their burden, trims costs, and (best of
all) affords them cover from complaints
about scope and methodology.
» By swapping keyword culling for
human review, requesting parties seek
to diminish reliance on an untrusted
opponent’s self-interested assessment
of the material. Their quid pro quo
for limiting the scope of search is the
expectation that, if it’s hit by the agreed-upon keywords, the item will be produced unless privileged.
In effect, requesting parties regard
an agreement to use queries as an agreement to treat those queries as requests
for production. Producing parties who
reject this thinking would nevertheless be wise to plan for opponents (and
judges) who embrace it.
Competing Ambitions. The use of
negotiated electronic search and culling
criteria is a relatively new development
in the law, yet it’s become a de rigueur
approach to dealing with ESI. Driven
by competing ambitions to narrow the
scope of discovery yet protect its integrity, opposing counsel are moved to
negotiate objective search and culling
criteria as benign as date intervals and
ILLUSTRATION BY JAMES STEINBERG
LTN | June2013 | 25
