In Gross Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents of the non-party construction manager, Hill International. However, the parties failed to consult with Hill for suggested potential search terms to appropriately filter out irrelevant material. Some proposed search terms (listed by the Court in the opinion) proffered by Gross included “sidewalk, II “change order,” “driveway,” “access,” “alarm,” “budget, II “build,” “claim,” “delay,”, “elevator,” and “electrical” opposing counsel observantly noted that such broad search terms would essentially result in the production of Hill’s entire email database because Hill was a construction contractor. Note, DASNY’s counsel was no search expert — the Court in pointing out that it was no search term expert — “But if one is searching for ‘Authority’, to also search for ‘Dormitory Authority’ is clearly redundant.” (Gross at FN1.)
The opinion raised four key issues for e-discovery counsel.
First, the Court warned:
This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”).
Second, the Court in citing Magistrate Judge Paul Grimm noted:
While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-know limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge. Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251,260,262 (D. Md, May 29,2008)
The Court in citing Magistrate Judge Facciola held that:
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. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.
United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008)
Finally, the Court “strongly endorsed” The Sedona Conference® Cooperation Proclamation (available at www.theSedonaConference.org) and noted that:
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must 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.
Id.