A key word search is a basic search technique that involves searching for one or more words within or across a collection of documents/files. Typically, the purpose of a key word search in a litigation is to limit the universe of potentially responsive data that one must process and review in order to prosecute/defend a lawsuit.  (Note, this blog relates to processing and reviewing data.  It presupposes counsel has preserved data in a robust and comprehensive manner).   Limiting the volume of data you process and review can result in tremendous cost savings to one’s client.  However, it must be done well so as to avoid pitfalls and resulting costs.   Below are some tips that can be helpful when thinking about key word search terms.   For example, one wants to give thought to their key words so as to avoid – to the greatest extent possible – “false hits” (a search term “hit” within a document, but not for the meaning that was intended).  For example, the term “comp*” would return “compensation” and “comp” (the intended terms), but would also return “computer” (not intended). Computer would be the “false hit.”

1. Terms of four or fewer characters often result in false hits.  Consider, for example, if one were to use “IT” as a search term hoping for hits relevant to information technology.  However, “IT” appears in so many other words the results of such a search would include many false hits.  This in turn, would increase the cost/time to review the hits to assess same for responsiveness.  

2. Searching for numbers can return unwanted results. This can be relevant if a patent is in issue or zip codes are being searched, etc.  If the numerical term is not quoted properly, the result may be skewed. Also, like (1) supra, searching for 1,000 will also return 1,000,000.

3. Avoid using wildcards. If you want to find “contract” or “contracts” then don’t use “contract*” as a search term. Simply provide both variations of the word. If you must use a wildcard, refrain from leading with a wildcard character. You may get the result you are looking for, but you will also bring a lot of unwanted hits with it.

4. Searching for custodian names is ill advised especially if that individual is part of the collection. Think about it – if you search for John Doe and all of John’s emails were collected as part of the process, you are going to get “hits” on ALL OF John’s documents. 

5. Sample documents with the proposed terms. Before deciding on search terms with the opposing party, try to actually sample documents with the proposed terms.

6. Give some thought to your search hit expectations. For example, did you expect a 20% return rate and you are getting 90%, or vice versa? If so, reconsider your terms.

7. Always consider a “file type exclusion” list.  For example, if there are no audio files or photos at issue in the lawsuit, then eliminate .wav and .jpegs.  Other files types to consider excluding are EXE, DLL, and system files.

8. Use the “w/2” proximity search between the first and last names of persons.  (John w/2 Doe) will pull back John Doe; Doe, John; John P. Doe; Doe, John P.

9. Suggest expanding first names with known nicknames. “Bill Johnson” could be searched with ((Bill OR William OR Will) w/2 Johnson). You will obviously need to gather any special nicknames from the client (this would be true of project names or code names assigned to different contracts, too etc).

10. Use domain names when searching for/identifying potentially privileged documents. The term (“farrellfritz.com”) for example would pick up all email addresses from that domain. Great search to identify communications with outside counsel.

Developing effective key words is very much an iterative and thought intensive process.  These tips will be helpful but I strongly advise sampling “hits” before committing to search terms.

 

In Gardner v. Continental Cas. Co., (2016 WL 155002 [D. Conn. Jan. 13, 2016]), the District Court was called upon to decide two different issues raised by Plaintiffs in a motion to compel.  The case itself concerned the long term care insurance coverage for five Connecticut residents for stays at Connecticut Managed Residential Care (“MRC”) facilities.  As is relevant here, after some negotiation, counsel agreed to a list of search terms to use to search the emails of twenty-three custodians.   The result was the return of approximately 38,000 documents.  Defendants reviewed the documents for relevance and privilege and produced 2,214 pages of documents – many of which were copies of the complaint and other filings in the lawsuit.  Plaintiffs sought to compel the production of the balance of the 38,000 documents, all of which were found using the agreed-upon search terms, and argued the smaller production was the result of defendant “cherry-pick[ing]” documents.  Plaintiff also agreed it should not be forced to accept the “just trust us” approach defendant endorsed. Further, the plaintiffs argued that the purpose of the agreed-upon search terms was “to avoid prolonged and detailed debate over what ESI documents [were] ‘responsive’ . . .” The plaintiffs supported their position regarding the scant production by pointing out that the defendant’s third-party claims adjustor submitted a “far more comprehensive and informative” production, while the defendant argued that it had already provided “extensive discovery” and that it had spent “significant resources” reviewing the documents from the agreed-upon search terms.

This discovery issue arises with much consistency in cases with extensive electronically stored information (“ESI”).  Overwhelmingly courts conclude that the position taken by plaintiffs is “simply untenable” – the defendant is not obligated to turn over all 38,000 documents, especially where issues of privilege abound.  The court did, however, recognize plaintiffs’ “legitimate concern” regarding the limited production, and ordered opposing counsel to confer and discuss approaches for addressing the potential need to turn over results of the search hits including—“sampling and iterative refinement.”

This decision raises an interesting issue.  It would seem obvious that only relevant non-privileged documents would be produced irrespective of how many documents (i.e., false responsive or privileged) “hit” upon a search term.  However, to avoid motions to compel and protracted discovery disputes, this case reminds us all to spell out precisely what we are agreeing to do when we enter into ESI protocols.

In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), discovery in the breach of contract case was contentious, protracted and resulted in a multiple motions to compel, the first of which the court granted in favor of the defendant.  At that time, the court warned the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.”  Not heeding the Court’s warning, Plaintiff subsequently produced documents on nine separate occasions.  At that time, Defendant learned, for the first time, of a “five-step development process,” that it believed was highly relevant to its claims in the case, and which caused it to believe that the plaintiff was withholding relevant documents from production.  Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information. 

The court granted in part Defendant’s second motion to compel and, in light of Plaintiff’s continued piecemeal production coupled with other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .”  The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].”

In deciding the motion, the Court expressed its frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.”  The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order “[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.”  “Instead,” the court continued, “the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . .” 

Reasoning that “[a] lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery,” that “[o]ur adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly” and noting that “Rule 37 helps enforce proper conduct,”  the court indicated it would “fashion a new and simpler approach to discovery that keeps the core of Optimum’s counterclaims in mind.”  The court went on to state that it had “noticed” “[i]n the various discovery documents attached to the motion papers” that “certain phrases appear that inevitably refer to or hint at [the at-issue technology]” and that the phrases “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship.”  Thus, after identifying the terms/phrases specifically, the court ordered:

For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).

The court also warned Defendant that it would not hesitate to impose the same approach on its discovery and ordered that counsel of record file, by a date certain, a sworn statement that all discovery requests had been fulfilled, or a motion for a protective order. 

In light of this judicial reminder that courts favor a collaborative and efficient resolution of matters, and that Judges can, and will impose sanctions for egregious discovery violations, counsel should take seriously their obligations to be cooperative, diligent and timely during the discovery process irrespective of the courthouse in which we practice.

 

In today’s litigious world, discovery is costly and can be perilous. Exacerbating this landscape is the fact that sanctions are imposed for discovery violations more than any other litigation error. Not surprisingly, avoidable discovery mistakes lead to client dissatisfaction.  Below are ten critical tips to avoid discovery sanctions and to remain compliant with discovery obligations.

  1. Implement Timely Litigation Holds Be sure your legal hold is implemented as soon as litigation is reasonably anticipated. Be certain that your hold notice is sufficiently broad, is sent to the right custodians, receipt is acknowledged, and it is updated as needed.
  2. Conduct Key Custodian Interviews A lawyer cannot rely only on the hold notice.  Rather, custodial interviews with key players, IT personnel and anyone else with information relevant to the dispute or the client’s network architecture should be conducted.  Minimally, these interviews will confirm the suspension of auto-delete protocols and will help identify all relevant information for preservation and collection.
  3. Be Proactive Because in today’s technology-intensive world there are substantial quantities of ESI, if you want to receive a document demand before preserving and collecting documents, you may not have time to respond to those demands.  Anticipate document demands so you can start the interview, identification and collection process.  You will have a better handle on the documents (what does and does not exist), and your client’s story such that you will be in the best position to comply with discovery and meet discovery challenges.
  4. Honesty is the Best Policy When Dealing with the Courts and Opposing Parties Never make a factual representation about the status of preservation, collection, or production efforts without confirming the underlying facts with original sources. While a client will rarely mislead their lawyer intentionally, it is common for clients to have incomplete information or operate under a misunderstanding of fact when information is communicated second- hand.   Moreover, courts and opposing parties understand that mistakes can happen at various stages of the discovery process.  Such issues must be addressed immediately and head-on.  Usually the optimal strategy is full disclosure along with remedial measures.
  5. Always Budget Obtain a realistic budget before proceeding with ESI collection processing and/or review.  This is a costly area of litigation and lawyers must manage client expectations. Update the budget as needed to accommodate changes attributable to collection volume or other factors.
  6. You Get More Bees with Honey… Seek a cooperative approach irrespective of how unpleasant or unreasonable opposing counsel may be. Indeed, a cooperative approach to discovery will invariably reduce disputes and expenses. Take the higher road and assume that every email and letter you write to opposing counsel may end up in front of the judge, so adopt a cooperative approach and reasonable tone in all communications with opposing counsel.    As one of our earlier blog posts showed (see Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)), Judges have very little patience for uncooperative behavior during a lawsuit’s “search for the truth.”
  7. There’s No Longer Room For Boilerplate Discovery The amended FRCP 26(g)(1)(B)(iii) provides that every discovery request and response must be signed by at least one attorney of record, and by signing you certify that the discovery request or response is proportional – meaning “neither unreasonable nor unduly burdensome or expensive considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of issues at stake….”  The Rule goes on to state that “[i]f a certification violates this rule without substantial justification, the court must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”
  8. Be Careful What You Wish For…Lest You Receive It In Return Never send a discovery request to an adversary that you or your client would be uncomfortable complying with were opposing counsel to author a reciprocal request to you.
  9. Carefully Devised Search Terms Are Critically Important The judgment of your legal team is a good starting point for crafting search terms, but is far from sufficient.  Review a preliminary “hit-by-term” report from your ESI vendor so you can appreciate which terms are too limiting or overbroad.  During custodial interviews (see supra) ask about project code names, and other unique search terms.  Then sample, sample, sample!  Sampling the documents—both the hits and the non-hits—can help refine search terms and validate the terms chosen.
  10. Wise Use of Technology Can Be a Litigator’s Best Friend ESI processing, review (even with contract attorneys) and production is among the most costly elements of any litigation.  When used efficiently and wisely, technology can significantly reduce those costs. Consider early data assessment, filtering and predictive coding technology as appropriate for each matter.