No Expert Testimony, No Motion to Compel

A court should be hesitant to resolve issues that demand technical expertise.

Magistrate Judge James C Francis IV

In a case with dueling motions to compel, the parties disputed the adequacy of search terms. Magistrate Judge James C Francis IV wrote a profoundly important warning to attorneys and judges on search terms: A court should be hesitant to resolve issues that demand technical expertise. Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 2012 U.S. Dist. LEXIS 167981, at *11 (S.D.N.Y. Nov. 21, 2012).


Neither of the parties submitted to the Court expert affidavits on the adequacy of the search terms. Judge Francis stated that expert testimony was “necessary for [him] to offer an opinion as to the most efficient, search protocol.” Assured Guar. Mun. Corp., at *12.

The Court noted that search term adequacy “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Assured Guar. Mun. Corp., at *11-12, citing George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).

The Court also cited to the archangel of search term cases to highlight the difficulty in analyzing search term efficiency:

…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.

Assured Guar. Mun. Corp., at *12, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).

The Court stated the parties had three options:

They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria;

They can refile a motion to compel, supported by expert testimony; Or,

They can request the appointment of a neutral consultant who will design a search strategy.

Assured Guar. Mun. Corp., at *12.

Bow Tie Thoughts

eDiscovery requires expert knowledge. It is extremely dangerous for courts and parties to engage in determining search terms without having at least one expert who understands what technology to apply to a case to help attorneys make the legal determination what is relevant; identify what is responsive to discovery requests; and determine what ESI is privileged.

There have been too many eDiscovery opinions this year that most likely did not have an eDiscovery consultant assisting either party. I am greatly concerned the recent case management orders that limited parties to five search terms per custodian was purely an arbitrary number and lacked any expert involvement in analyzing the data before any such motion practice.

This is as dangerous as an accountant telling a doctor what procedures they can use to treat an emergency room patient before any triage takes place. The accountant is in no position to know what is best for patient care.

If determining search terms efficiency is the work of angels, limiting search terms without consulting an expert is embracing the dark ages at best and malpractice at worse. Why risk limiting your ability to find what is relevant to your case? Why risk driving up discovery costs by making searching for ESI harder?

Conversely, would any attorney agree to limiting their legal research to the arbitrary number of 3 terms and prohibiting the consultation of a research attorney to “lower costs”? Most likely no.

The answer to controlling eDiscovery costs is not limiting the tools to find what is responsive, but the education of attorneys and judges in understanding how to conduct eDiscovery. Highlighting the need for eDiscovery education, one recent opinion had a judge hold that TIFF’s are a form of production “that is easily searchable for specific terms.” Johnson v. Allstate Ins. Co., 2012 U.S. Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012).

Tagged Image File Format is not searchable. Parties convert ESI to TIFF’s (usually at any additional processing cost) to make the native files not searchable. A production with TIFF’s would require extracted text, substantive and/or embedded metadata, or the TIFF’s to have optical character recognition (OCR) to be in a reasonably useable form without searchable features denigrated. Saying TIFF’s are searchable is simply wrong.

Judge Francis was profoundly correct when he stated, “A court should be hesitant to resolve issues that demand technical expertise.” eDiscovery requires attorneys being competent to understand their client’s ESI, which should involve having enough education on eDiscovery to know when to bring in an expert for help; determining whether or not search terms are effective requires such expert assistance.

    1. I really appreciate the kind words. I have never thought of doing a CLE on attorney blogging. I have considered doing one on social media campaigns with blogs.

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  1. An excellent posting. As someone performing computer forensics and eDiscovery, I most heartily concur. Far too often, search terms and concepts are generated out of thin air, with little understanding of either computer data storage and operating principles or of search principles. Selection of common words, computer terms and the like bog down the discovery process causing costly and unnecessary delays.

  2. How would one go about certifying that they are an expert in the sciences of computer technology, statistics and linguistics?

    1. Here is a summary from a case where a witness was designated an expert as one example:

      The Court accepted the plaintiffs computer forensics specialist as an expert based on the facts that he had worked in the forensic field for five years and had completed between 1,600 and 1,700 forensics reports which had been accepted by various courts.

      The expert did not have a degree in computer science, was not an expert in a computer language, was not a computer programmer, and held no certificates in computer science.

      He had been, however, a member of the High Tech Crime Investigation Association and had completed three postgraduate intensive training courses in computer forensics.

      Galaxy Computer Services, Inc. v. Baker,   325 B.R. 544, 563 (E.D.Va. 2005).

    2. In evidentiary rulings, the Court found that plaintiffs expert was qualified as an expert even with his reluctance to call himself an expert in forensics . . . the law does not limit expert testimony to those who are considered the absolute best in the field. (citation omitted). The law only requires that [the expert] possess such knowledge and experience in [the] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for the truth . . . .

      Davison v. Eldorado Resorts LLC, No. 05-0021,    2006 U.S. Dist. LEXIS 12598, at *10-15 (D. Nev. Mar. 10, 2006).

  3. Well-written summary, Joshua; a nice example of judicial restraint. Given all of the moving parts in search (not to mention technology-assisted review), the court wisely returned the burden of educating the bench to the litigants.