Determining search terms can sink into a voyage on the Pequod hunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information.
To The Last, I Grapple With Thee
In EEOC v. McCormick & Schmick’s Seafood Rests., Inc., the parties disagreed over search terms for the following EEOC discovery request:
“[E]mail communications responsive to EEOC’s First Request for Production of Documents to Defendants, particularly those relating to applicants, hiring, complaints of racial discrimination, and server section assignments…”
EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2012 U.S. Dist. LEXIS 13134, 13-14 (D. Md. Feb. 3, 2012).
The Defendants claimed the EEOC did not provide any proposed search terms to limit the whale of a tale of email for the Defendants to search. McCormick & Schmick’s Seafood Rests., Inc., at *14.
The Court explained the practice, and danger, of just the producing party searching oceans of email:
Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of Fed.R.Civ.Proc. 26(b)(2)(C). If the producing party generates the search terms on its own, the inevitable result will be complaints that the search terms were inadequate.
McCormick & Schmick’s Seafood Rests., Inc., at *14.
Gamming Over Search Terms
In old nautical traditions, a gam is a rendezvous of ships at sea. In today’s legal world, it is similar to a meet and confer.
The Court, recognizing the need for the parties to discuss search terms to narrow the data to emails relevant in the lawsuit, ordered the following:
For that reason, this Court will require the parties to confer on the development of reasonable search terms to be used to obtain responsive email communications in this case.
McCormick & Schmick’s Seafood Rests., Inc., at *14.
The Court ordered the EEOC to provide a list of search terms within five days. The Defendants were ordered to respond with any possible within five days after receiving the proposed search terms. The parties were to have good faith negotiations over any disagreements. McCormick & Schmick’s Seafood Rests., Inc., at *14-15.
…And like Melville’s great whale circling the ships, the Court stated that if the parties could not agree on reasonable search terms:
[The] Court will determine, after review of the parties’ proposed lists and particularized information regarding the burden to be imposed by the proposed search, which terms will be used to allow Defendants to provide responsive email communications.
McCormick & Schmick’s Seafood Rests., Inc., at *15.
Bow Tie Thoughts
Developing search terms with an opposing party can drive a lawyer to sound like Gregory Peck…and not as Atticus Finch from To Kill a Mockingbird.
Search terms are not something a lawyer can take revenge on for producing large data sets. In fact, parties need to meet and confer in cases with large volumes of data, to avoid searching the oceans for relevant ESI.
Here are just a few strategies for determining search terms:
Select Team for Creating Search Terms:
Litigating attorney, client, expert in subject matter, expert in building keyword search strings
Determine data sources.
Brainstorm possible names, events, dates and phrases that may be connected to the case.
Compile a list of last names, first names, surnames, nicknames, positions and other titles connected to the case.
Determine acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues.
List date ranges that correspond with critical time period in case.
Determine key event terms (heart attack, cardiac, hospital).
Determine search phrases.
Use thesaurus to locate similar words.
See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f) (2011-2012 Ed.).
Document review should not be a Melvillean maelstrom of over expansive data. If the discovery is in the terabytes, search terms and a defensible methodology are a necessity in order to find the relevant ESI. Moreover, cooperation between the parties is vital for success, to avoid one party selecting very narrow search terms and the other claiming the search was under-inclusive.
Mechanical Analytics, or predictive coding, is one of the “newer” technologies in being able to help determine relevant ESI. Predictive coding is arguably necessary in cases with extremely large volumes of ESI, because of efficiency and cost-savings in being able to identify relevant ESI faster than traditional review.
In essence, the software learns from a reviewing attorney who is a subject matter expert in the case and identifies additional relevant ESI based off the work done by the attorney. That is a very simple description of the technology. For a more detailed discussion, see this article by Herb Roitblat from OrcaTec (Disclosure: I have friends at OrcaTec and I have referred business to them).
Finding relevant electronically stored information is not a mad hunt for a white whale. With the right technology and strategies, parties can narrow data sets to relevant information.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.