“Fear” is Not An Objection to Search Terms

In a trade secret case involving the search of electronically stored information, the parties disagreed over the use of keywords to search the data sets. Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012).

The gravamen of the dispute was the Defendant’s argument to use a set of search terms that required precise matches between search terms and ESI. Custom Hardware, at *6.  The Plaintiff countered this narrow search would prevent discoverable information from being produced.  Id.

The Court reviewed several major cases involving search terms.  Citing Victor Stanley, Inc., the Court recognized that search terms are “appropriate and helpful” for searching ESI, along with having “well-known limitations and risks.”  Custom Hardware, at *7, citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D.Md. 2008).

Quoting the Sedona Conference, the Court stated limitations and risks exist because “[k]eyword searches identify all documents containing a specified term regardless of context[.]”Custom Hardware, at *7, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007).

The Court explained search terms could simultaneously be over and under inclusive, finding ESI that is both irrelevant to the case and missing relevant ESI, due to word misspellings.  Custom Hardware, at *7-8. The Court summarized:

As a result, the usefulness of keyword searches as a means of discovery is limited “by their dependence on matching a specific, sometimes arbitrary choice of language to describe the targeted topic of interest.”

Custom Hardware, at *8, citing The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 201 (2007).

The Defendants’ first objection can be summarized as the fear of producing privileged information.  Custom Hardware, at *11-13.  The Court curtly stated, “Defendants’ fears provide no basis to stymie the discovery process.”  Custom Hardware, at *11.

The Court cited case precedent regarding searching hard drives, the producing party may create a privilege log expressly explaining any privileged information.   Custom Hardware, at *11, [citations omitted] and Federal Rule of Civil Procedure Rule 26(b)(5)(A)). The Court stated:

As a result, fear of disclosure of privileged information provides no basis for Defendants to object to the discovery process. Instead, if Defendants find that responsive information is also privileged, they must so state in a privilege log…

Custom Hardware, at *11.

The Court took direct aim at the Defendants’ objection that the search terms would encompass “only irrelevant information.”  Custom Hardware, at *11.

The Court found the argument to be without merit and the Defendants’ objection merely a “conclusory statement, stated without any argumentation or other support.”  Custom Hardware, at *11-12.

Finally, the Court found the Defendants’ proposed search terms to be “problematic and inappropriate” because it would limit the responsive ESI to exact search term matches, including “phrasing, capitalization, or both.”   Custom Hardware, at *12.  The Court stated:

As a result, Defendants’ proposal would fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI. This outcome is problematic, because whether information is discoverable under Rule 26(b) does not turn on the existence of an exact match in capitalization and phrasing.

The Court found the proposed exact matching search terms “would prevent Plaintiff form obtaining discoverable information and is inconsistent with the broad scope of discovery established by Rule 26(b)(1).”  Custom Hardware, at *13.

Bow Tie Thoughts

Objections to discovery requests cannot be solely out of fear.  An objection must have legal justification.  More importantly, any challenge to search terms must be substantiated with affidavits explaining the technology at issue and supporting evidence, such as a search term efficiency report or other documentation explaining the results of a keyword search.

Trying to control eDiscovery costs by requiring search terms to be exact matches will only result in missing responsive electronically stored information. Moreover, conducting a search of a litigation support database is not the same as conducting legal research.

In Rec Solar Grade Silicon LLC v. Shaw Group, Inc., 2011 U.S. Dist. LEXIS 51459, 40-41 (E.D. Wash. May 13, 2011), the Court ordered 31 keywords to searched over a dataset. These included the following;

7. “applied technical” or ats

25. weld! /2 test! or “weld-test”

My friend Charlie Kaupp at Digital Strata noted several issues with such search terms in a presentation we did together at PFIC.  For the search string “applied technical” or “ats”, it is advisable to avoid acronyms shorter than four letters and to determine a methodology to constrain the search.  Charlie recommended changing the search to “applied technical” OR (ats /20 (applied OR technical)), so the search was constrained with elements of the phrase term.

As for the 25th search string, Charlie explained the “weld-test” term was redundant to the broader term with the proximity operator.  Additionally, by reducing the redundancy of the search terms, a user can conserve system resources when conducting a search.  As such, the revised search would simply be “weld! /2 test!.”

The lesson from the above: Involve a consultant to help draft a search methodology.

Technology is also expanding beyond keyword searches with concept search, predictive coding, advanced analytics and other clustering methodologies.  While the knee jerk reaction by some attorneys is “technology = expensive,” these new tools can be as much as an improvement to finding responsive discovery as flying in an airplane across the country is to driving a car.

(Disclosure: I have friends at and a professional relationship with the team at Digital Strata)

One thought on ““Fear” is Not An Objection to Search Terms

  1. Pingback: Bow Tie Law’s Blog: “Fear” is Not An Objection to Search Terms - ADR Toolbox

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