Cooperation and Keyword Searches: A Wake Up Call for Counsel

February 26, 2010

Authored By: Laura C.

Citation: William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

Employee/Employer Implicated: Counsel, Third Parties, Document Custodians

e-Lesson Learned: When it comes to conducting searches of email and electronically stored information, New York District Courts expect counsel to cooperate and, with the input of document custodians, carefully develop keywords, which should then be quality control tested to assure accuracy and eliminate false positives.

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Although most professionals and courts are still behind in the times when it comes to electronically stored information (ESI) and its discovery, the Southern District of New York recently sent a clear warning: Get with it! This district court cautions that counsel must cooperate with each other and get input from document custodians, to carefully develop and test keywords used to search email and other ESI.

In this March 2009 case stemming from a multi-million dollar construction dispute, the project owner agreed to produce all project-related emails and ESI from its non-party construction manager. The issue before the Court concerned the production of the construction manager’s emails from its server, and how to separate unrelated emails from project-related emails.

In planning the search, the project owner suggested keywords specific to the names of the parties and the project, which were likely to be under-inclusive. The other parties requested the use of generic construction project keywords such as “build” and “claim” that would have triggered production of a vast amount of unrelated emails and ESI. The non-party construction manager, not wanting to be involved in the litigation, offered very little assistance in the development of the search terms. The parties’ inability to establish a keyword search compromise compelled the court to develop the terms of the keyword search, with little information and guidance from the parties.

Chastising the parties and counsel for these recurring problems, the Court emphasized the need for counsel to cooperate with each other and get adequate information from email authors and document custodians in order to successfully develop a keyword search. The Court underscored the importance of advanced planning by those qualified to develop the search methodology, along with the need for quality control to assure accuracy and completeness of the search. The party who selects the method must be able to explain it to the Court, including reasons for using the particular method, why the method was appropriate, and how it was properly applied.

Outside Counsel must cooperate when it comes to e-discovery issues. In formulating and conducting searches of emails and ESI, obtaining input from clients, email authors, and ESI custodians is key; and the use of quality control methods assures accuracy and completeness of the keywords and search. Not only will these techniques make the eDiscovery process easier and more reliable, but also courts now expect counsel to employ such methods without having to be told to do so.

Article posted on February 26, 2010 at 5:40 PM |