Trends In Using Search Terms Or Keywords In e-Discovery
Kate Kowalewski, Esq.
As the world is increasingly connected by technology, managing electronic discovery (e-discovery) is becoming more complex. Nevertheless, despite recent innovations in e-discovery platforms, using search terms or keywords to identify relevant information stored in electronic format (often referred to as electronically stored information or ESI) continues to be a commonly accepted practice in the litigation process. Over the years, attorneys have used keyword searches to identify documents on thousands of hard drives, e-mail stores, thumb drives, CD’s and servers. Given the large amount of data available, effective search terms can be a powerful means for culling down a large dataset.
In this article, I have explored a few of the recent trends in how courts are treating search terms or keywords used in e-discovery.
Are Keyword Search Terms Discoverable?
In the best-case scenario for every case involving ESI, the parties will stipulate to search terms and keyword searches early in the litigation process prior to any search queries being conducted. However, this is not always feasible in the real world and often-times, it falls upon one party to craft the search terms for ESI or to design the detailed search criterion.
When the parties do not collaborate on search terms, the party responding to the document request will determine the search parameters to apply to the ESI. Many attorneys believe that the search terms they choose to locate relevant documents falls within the ambit of the work-product privilege and as such it is protected from discovery.
The work-product doctrine protects materials that are collected or prepared by or for an attorney in anticipation of litigation. In general, materials that fall within the scope of the work-product doctrine are shielded from discovery. In limited circumstances, an opposing party may discover or compel disclosure of work-product upon a showing that (1) the party has a “substantial need” for the materials to defend against or substantiate a claim and (2) the party is unable to obtain the materials from another source without “undue hardship”. Fed. R. Civ. Pro. 26(b)(3); See also Cal. Code Civ. Proc. § 2018(c). When a party makes the required showing, the court will allow the factual work-product to be disclosed; whereas the court will continue to shield the mental process work-product (the impressions, conclusions, opinions or legal theories of the attorney) from being disclosed, as mental process work product is afforded nearly absolute protection.
Many lawyers believe the procedures or techniques they use to locate relevant documents falls under the protection of the work-product privilege. They argue that the search terms and keywords they select reflects their own thought processes and mental impressions on how to find relevant information in the matter.
While many courts have not yet opined upon this issue, the courts who have addressed it have rejected the above argument and ordered the disclosure of the search terms and keywords. The consensus is that the search terms relate to the underlying facts of what documents are responsive and do not delve into the thought processes of attorneys.
In Formfactor, Inc. v. Micro–Probe, Inc., the Northern District rejected plaintiff’s argument that disclosure of search terms would reveal privileged information and ordered plaintiff to turn over search terms that were used to conduct an electronic search. The court held that “[s]uch information is not subject to any work product protection because it goes to the underlying facts of what documents are responsive to Defendants' document request, rather than the thought processes of Plaintiff's counsel.  Moreover, Defendants' substantial need for this information is apparent.  There is simply no way to determine whether Plaintiff did an adequate search without production of the search terms used.” Case No. C–10–03095 PJH (JCS), 2012 WL 1575093, at *7 n. 4 (N.D.Cal. May 3, 2012) (listing cases explaining why search terms are not work-product).
Notably in the high-profile case of Apple, Inc. v. Samsung Electronics Co. Ltd., the Northern District ordered Google, a third-party litigant, to comply with Apple’s request to turn over the search terms it used to identify documents relevant to Apple’s document subpoena. Relying upon Formfactor, the court held that search terms and custodians are not protected by the work-product privilege. Additionally, the court rejected Google’s argument that its third-party status conferred upon Google additional protections from compliance with a discovery order. 2013 WL 1942163, at *2 (N.D.Cal. May 9, 2013).
As an attorney, if you or someone at your behest are engaging in keyword searches to locate documents responsive to a discovery request, it is important to bear in mind that the search terms you are utilizing may be discoverable by the other side. Similarly, if you are on the receiving end of documents located by using keyword searches and you are questioning whether the other party conducted an adequate search in identifying all the relevant documents, then you may consider making a request to see the search terms they used in culling the responsive documents.
Does Agreeing on Keyword Search Terms Entitle You to All Responsive Documents?
Litigants, especially in federal court, are expected to cooperate with each other in developing a discovery plan. As part of such plan, it is increasingly common for parties to stipulate to the search terms or keywords they will use to search their ESI for relevant documents. Many attorneys believe that if the parties stipulate to the search terms, then it creates an obligation or de facto requirement by the other party to produce all the documents that contain the matching terms.
This argument was recently rejected by the Southern District in Flowrider Surf, Ltd. v. Pacific Surf Designs, Inc., Case No. 15-cv-1879-BEN (BLM), 2016 WL 6522807 at *7 - *8 (S.D. Cal. Nov. 3, 2016). In Flowrider, the parties agreed to a list of ESI search terms. Defendants argued they had a right to any resulting “hits” to documents containing the matching search terms because: (1) each search term was narrowly-tailored to a specific issue in the case, (2) culling based on relevance was not contemplated by the ESI Order entered in the case; and (3) plaintiffs waived any argument that search terms were too broad because they agreed to the search terms. Plaintiff argued that despite the parties’ efforts to tailor the search terms, the resulting “hits” contained many irrelevant and unresponsive documents. Accordingly, plaintiffs asserted they were entitled to cull the documents for relevance. The court sided with the plaintiffs stating that simply because the parties agree in advance to search terms, it does not constitute acquiescence to produce all documents containing the keywords. Thus, the plaintiffs were permitted to cull the documents and were only required to produce relevant documents yielded during the search.
Do You Have to Agree in Advance to Search Terms?
Many attorneys believe that they do not have a duty to meet and confer with opposing counsel regarding proper search terms. Nonetheless, one federal court recently rejected this argument.
In Pyle v. Selective Insurance Company of America, Case No. 2:16-cv-335, 2016 WL 5661749 at *2 (W.D. Pa. Sept. 30, 2016), a former Selective employee sued the defendant company. Thereafter, plaintiff served defendant with a request for production seeking ESI. Defendant gathered some responsive documents but also requested that plaintiff provide search terms to query email archives. After Plaintiff’s counsel refused to provide any search terms, defendant filed a motion to compel plaintiff to cooperate and provide keywords to identify responsive ESI or else to relieve defendant from the obligation to produce any ESI. Plaintiff argued that defendant cited no authority to support its request to compel plaintiff to provide search terms.
The court, in granting defendant’s motion, stated that:
Plaintiff’s argument totally misses the mark; in fact, it borders on being incomprehensible. Far from being baseless, Defendant’s request is entirely consistent with both the letter and spirit of the Federal Rules of Civil Procedure regarding the discovery of electronically stored information . It is well settled by now that “electronic discovery should be a party-driven process.” Romero v. Allstate Ins. Co., 271 F.R.D. 96, 109 (E.D. Pa. 2010) (internal citation omitted). The Federal Rules expressly require counsel to meet and confer on “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]” Fed. R. Civ. P. 26(f)(3)(C). “Among the items about which the court expects counsel to `reach practical agreement’ without the court having to micro-manage e-discovery are `search terms, date ranges, key players and the like.'” Romero, 271 F.R.D. at 109.
Attorneys should be aware that the determination of ESI search terms is a two-way street. It is not only the responsibility of the party responding to a document request. Thus, whether you are the party seeking or responding to ESI discovery, you should be prepared to meet and confer regarding the appropriate search terms.
In the world of e-discovery, collaboration is a key concept. Parties should strive to meet and confer early in the process to discuss and stipulate to search terms and keywords to make the search and production of discovery as effective as possible. This will save time, increase efficiency and certainly reduce the cost of litigating motions to compel.
Kate Kowalewski is a Managing Financial Analyst with Brinig Taylor Zimmer Inc. where she focuses on providing forensic accounting and litigation support services.