Take Away: United States Magistrate Judge Andrew Peck emphasized the critical importance of cooperation between parties and ESI custodians in the development of appropriate keywords or search terms for the culling of relevant ESI. Judge Peck references the leading search term cases, Mancia and O’Keefe, to highlight the inherent difficulties of determining appropriate terms, and the near impossibility of making such determinations without the input of the ESI custodians and creators who are privy to the particular abbreviations and terminology used. He also strongly endorses The Sedona Conferences’ Cooperation Proclamation. The rationale, appropriateness, and implementation of any methodology used to create search terms should be cognizable. Further, any such methodology must be tested for accuracy. Judge Peck notes that many discovery disputes regarding search terms could be avoided by the appropriate use of subject lines identifying specific matters.  

On March 19, 2009, United States Magistrate Judge Andrew Peck issued an opinion for an electronic discovery dispute regarding “search terms” or “keywords” in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Ins. Co., 2009 U.S. Dist. LEXIS 22903; 2009 WL 724954 (S.D.N.Y. March 19, 2009). Magistrate Peck began by stating that the opinion should serve as a “wake-up call to the Bar . . . . about the need for careful thought, quality control, testing, and cooperation with opposing counsel” in the design of keyword search terms used for culling relevant e-mails or ESI.

The case arose from a multi-million dollar construction dispute between the project owner, the Dormitory Authority of the State of New York (“DASNY”), and multiple contractors who worked on the Bronx County Hall of Justice. Non-party Hill International was DASNY’s construction manager, and DASNY agreed to produce Hill’s e-mails for the suit. The parties, however, could not agree what proper “search terms” or “keywords” should be used to separate project-related e-mails from other, unrelated e-mails. Moreover, the emails did not use specific subject lines, making keyword searching of the body of the emails all the more critical.

DASNY suggested “DASNY,” “Dormitory Authority,” “Authority,” “Court!,” “Bronx but not Zoo,” and the names of all parties to the suit as viable search terms. The other parties suggested additional search terms, including “sidewalk,” “change order,” “budget,” “build,” “claim,” and “delay.” Hill, the third party, observed that while DASNY’s terms were likely too narrow, the other contractors’ terms were likely overbroad.

Before proceeding to quote from other keyword-related decisions from the recent leading cases out of Maryland and the District of Columbia, discussed below, Judge Peck remarked that the dispute between the parties was “just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.” Judge Peck quoted District of Columbia Magistrate Judge Facciola to highlight the difficulties of search term development:

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. 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.

United States v. O’Keefe, (D.C.C. 2008) (discussed here). Judge Peck also cited Magistrate Judge Paul Grimm of Maryland to note the need for advanced planning by qualified individuals, alongside quality assurance testing and the ability to explain the rationale, appropriateness, and proper implementation of any search methodology. Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. May 29, 2008) (discussed here).

Judge Peck stated that the best solution in the electronic discovery arena is cooperation, and noted the court’s strong endorsement of The Sedona Conference Cooperation Proclamation (available here). Judge Peck thus joins the national push by judges, legal scholars, technical consultants, and members of the practicing bar towards increased dialogue and the early exchange of information. This movement, which we have described on this blog as the “Theme of the Year” from 2008 (read article here) appears to be gathering momentum.

Judge Peck closed his wake-up call by stating that attorneys must at minimum, “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.”

Though Judge Peck’s addresses a critical issue in the field of e-discovery: how to find the relevant electronic documents without blowing the discovery budget for both parties far out of proportion with the issues at stake in the litigation. Obviously, cooperation in the development of search terms through open communication between all parties, including both the individuals exchanging e-mails and the ESI custodians could have avoided legal expenses as well as the judge’s wrath in this case. Additionally, simple solutions such as uniform subject lines for specific matters can curtail later disputes regarding search terms by providing immediate identification of relevant ESI, and thus reducing the pool in which the search terms will be applied. As this opinion demonstrates, terse judicial wake-up calls regarding e-discovery are becoming more frequent, and the time to take note is now, before you find yourself on the receiving end of an opinion citing Judge Peck.

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