A prior post (Keyword Searching – What is it? And How Do I Do It (Well)?) offered some tips for crafting effective search terms for use in the e-discovery process. Although those tips still hold true, today’s blog offers ways to utilize an ESI protocol to promote a more seamless electronic search process.*
An ESI protocol is intended to allow parties to agree on, among other things, how data will be accessed and produced in connection with a litigation. As part of the protocol, parties should negotiate the process for crafting search terms, identifying the universe of data to be searched, and validating search term results. Critical to the negotiation process is understanding that the goal is to discover data that will support the party’s arguments at summary judgment or trial.
Tip 1: Let the party with the data determine the best search terms.
It is common practice for the requesting party to propose search terms. However, this often means that the attorney, with more limited facts than the party in possession of the data, is left to guess at search terms that are likely to identify potentially responsive data. And so, it may be valuable to incorporate into one’s ESI protocol a mechanism that allows the responding party to propose initial search terms based on each document request. After all, it is the responding party who has access to the data and the custodians and who, therefore, may be best situated to understand which search terms to use. Because the process is an iterative one, the parties can meet and confer to discuss refinement and iterations as necessary (see Tip 3).
Tip 2: Tailor your search terms to the type of system and data being searched.
When formulating an ESI protocol, it is important to identify the data to be searched. For example, are the search terms being run across a party’s entire network? Only e-mail servers? Text messages?
Knowing the data to be searched will also help inform a party’s search terms. For example, communication styles differ between formal work emails and informal messaging applications like Skype for Business. And so, search terms should be tailored to reflect these distinctions.
Tip 3: Detail how the iterative process will work.
An adversary may contend you have but a single bite at the search term apple. But, no matter how deliberate the initial bite is, revisions are almost always necessary. And so, to afford your client the greatest protection against an adversary who refuses to permit revisions, be sure to delineate an iterative process in your ESI protocol. This process may include iterative sampling, measurement of results, and validation that the technology worked as expected.
Tip 4: Keep the final product in mind.
Throughout the often tedious process of crafting search terms, be sure not to lose sight of the ultimate goal—how will I use the data at summary judgment or trial? Take into consideration how the data will physically look, fit together to form cohesive evidence, and best support your arguments. Thinking about how discovered data will be presented to a judge or jury should inform your decisions when crafting search terms and your ESI protocol.
*For clarity, today’s blog discusses search terms in connection with processing and reviewing data, not identifying data for preservation.
Thank you to second year associate, Jaclyn Ruggirello in the Firm’s Uniondale office, for her research assistance related to today’s blog.