There is a clear trend in the law for a producing party to make disclosure of the keywords used to find documents responsive to a request for production. Moreover, all the requesting party has to do is ask. There is no requirement for a showing of good cause. This represents a further erosion of the attorney work product, which is a confidentiality protection, or privilege, distinct and separate from attorney-client privilege. The work product doctrine is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories. It also protects from discovery documents and tangible things that are prepared in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495 (1947); Rule 26(b)(3), FRCP. Therefore, you cannot send an interrogatory asking for the other side’s strategy to win the case; or more correctly stated, you can ask, but the attorney does not have to answer.
There have always been exceptions to the work product privilege, and the privilege has always been afforded less protection than the attorney-client privilege. Indeed, unlike the attorney-client privilege, which is owned by the client, and can only be released by the client or court order, the work product privilege is held by the lawyer, not the client. The lawyer can share his mental impressions with the other side, if he wants to. This frequently happens, especially in any settlement discussions, where both sides will try to persuade the other of the strength of their case and why and how they will win, and the other side will lose.
Trial lawyers have always disclosed some work product to each other to prepare for trail (of which discovery is a part), conduct trials, and settle cases. A lawyer can share his mental impressions with the other side, with little fear of opening the door of a complete waiver. In addition to settlement discussions, this kind of sharing frequently happens in discovery. How could you possibly comply with Rule 26(f), for instance, without some select waiver of work product? Remember in subsection (2) it mandates attorneys to discuss the “nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case” and to develop a joint discovery plan. In subsection (3) the rules require lawyers to talk to each other and “state the parties’ views and proposals” on a topics A-F. Subsection (C) of Rule 26(f) in turn requires discussion of the views and proposals concerning “any issues about disclosure or discovery of electronically stored information….” All of these mandated discussions require disclosure of an attorney’s mental impressions, conclusions, opinions, and legal theories.
Still, many lawyers have long considered the particular methods they used to find documents that are responsive to a request for production to be obvious work product. It was, after all, their own thought processes and legal techniques. If they used keywords to find the relevant documents, then they should not have to disclose what words they used. They argued that it would unfairly require them to disclose their theory of the case, their mental impressions of how to find relevant information.
But this argument is losing steam, especially in so far as keywords are disclosed. Consider for example the ruling in a recent trade-secret theft case in California that cites to the law of several other jurisdictions.
To the extent Plaintiff argues that disclosure of search terms would reveal privileged information, the Court rejects that argument. Such information is not subject to any work product protection because it goes to the underlying facts of what documents are responsive to Defendants’ document request, rather than the thought processes of Plaintiff’s counsel. See Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109-10 (E.D. Pa. 2010) (finding that document production information, including search terms, did not fall under work product protection because such information related to facts) (citing Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981) (“Protection of the privilege extends only to communications and not to facts. The fact is one thing and a communication concerning that fact is entirely different.”)); see also Doe v. District of Columbia, 230 F.R.D. 47, 55-56 (D.D.C. 2005) (holding that Rule 26(b)(1) of the Federal Rules of Civil Procedure can be read to allow for discovery of document production policies and procedures and such information is not protected under the work product doctrine or attorney-client privilege). Moreover, Defendants’ substantial need for this information is apparent. See In re Enforcement of Subpoena Issued by F.D.I.C., 2011 WL 2559546, at *1 (N.D. Cal. June 28, 2011) (LaPorte, J.) (“Fact work product consists of factual material and is subject to a qualified protection that a showing of substantial need can overcome.”). There is simply no way to determine whether Plaintiff did an adequate search without production of the search terms used.
Formfactor, Inc. v. Micro-Probe, Inc., Case No. C-10-03095 PJH (JCS), 2012 WL 1575093, at *7 n.4 (N.D. Cal. May 3, 2012).
Lawyers, get ready to disclose your keywords and other methods you use to find relevant information. The days of your being able to cloak them in work product appear numbered.