For all their drawbacks in locating electronically stored information (ESI), keyword searches are often the default option for finding relevant ESI in a case. Keyword searches can be problematic as a search methodology because it is difficult to predict with accuracy the way the responding party may describe evidentiary issues and terms in the case. Keyword searches can also be deficient due to the limitations of our own imaginations. After all, it can be difficult to think of every synonym for a keyword in a case.

Cooperation is Key

By far, one of the biggest drawbacks to keyword searches is the lack of cooperation among counsel. If lawyers are unwilling to cooperate in the formulation of keyword searches, then the requesting party will be at a significant disadvantage in locating relevant ESI in the case. Therefore, when using keyword searches to locate ESI, it is important to understand that cooperation is often the linchpin in determining whether your search will be successful.

E-discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. See William Gross Construction Associates, Inc v. American Manufacturers Mutual Ins. Co., 256 F.R.D. 134, 136 (S.D. N.Y. 2009). William Gross demonstrates the necessity of counsel cooperating with each other in order to come up with viable search terms to apply to searches of ESI. That case involved a dispute over alleged defects and a delay in the construction in the Bronx County Hall of Justice. The Dormitory Authority of the State of New York (DASNY) was the owner of the project. Non-party Hill International was DASNY’s construction manager. DASNY agreed to produce Hill’s project-related documents and ESI to the other parties to the suit. The issue facing the Court was the production of Hill’s e-mails and how to separate project-related e-mails from Hill’s unrelated e-mails.

Input from Custodians

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DASNY proposed search terms like “DASNY,” “Dormitory Authority,” “Authority,” and the names of other parties to the action. The other parties requested thousands of additional search terms, emphasizing the construction issues in the case. The use of thousands of search terms would likely require production of Hill’s entire e-mail database. The Court ruled that in addition to DASNY’s proposed search terms (including variations on and abbreviations of party names), the search terms should include the names of the parties’ personnel involved in the courthouse construction.

The court found that the case was 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 e-mails.” The court stated that electronic discovery requires cooperation between counsel and “transparency in all aspects of preservation and production of ESI.” Where counsel are using keyword searches for retrieval of ESI, search terms must be crafted with input from the ESI’s custodians as to the words and abbreviations they used, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.”

The William Gross case demonstrates that cooperation is the backbone to formulating proper keyword searches. As William Gross shows, inventing a laundry list of random search terms is not the best way to uncover relevant ESI. Such an approach may actually irritate the Court.

3 Keys to Effective Keywords

When working with opposing counsel, try to discover:

1. the key custodians who may hold relevant ESI
2. the types of ESI that these custodians hold
3. the way these custodians described key terms in the case

By working with opposing counsel, you can be in a better position to discover key search terms you would not have otherwise discovered.

After formulating keyword searches, it is important to implement a quality control process to ensure that the keyword searches are actually uncovering relevant ESI. This might require examining a random statistically significant sample of ESI to see if relevant ESI is undiscovered. If the random sample of ESI contains relevant documents that were not discovered by keyword searches, you need to go back and reformulate your searches.

Ultimately, by working with opposing counsel and implementing quality control measures, you will be in a better position to ensure that the ESI relevant to the case is discovered.