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.
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.