28 Dec 2011

E-Discovery Search Terms: What Are Reasonable E-Discovery Search Parameters?

Posted in: Thursday E-Discovery Case Law 2 Comments

By Mike Hamilton, J.D.

Can you guess what is wrong with the following keyword search parameters listed below for an e-discovery request?

  • 58 predefined keywords with different searching variations (Boolean, etc.)
  • No specific time periods or employees
  • Inclusive of non-active and active files
  • Inclusive of all unallocated computer space

If you guessed that they create an overly broad and burdensome production request, then you are right.  Amazingly, these were the search terms agreed upon between the parties in I-Med Pharma, Inc. v. Biomatrix, Inc. (D.N.J. Dec. 9, 2011). Here is what the search turned up:

Total Number of Keyword Hits: 64,382,929 (more than 95 million pages of data)

In this case, the judge modified the discovery order between the Plaintiff, I-Med, and Defendant, Biomatrix, to exclude a review of the unallocated space files based on Plaintiff’s contention that a privilege review would be too expensive and burdensome. The Defendant appealed the ruling, stating that the judge “abused his discretion” by overturning the search parameters that both parties agreed to at the outset of the case.

The U.S. District Court affirmed the lower court’s ruling that the benefit of the privilege review would not justify the burdens of completing the review.  Under the proportionality rule FRCP 26(b)(2)(C), the court is granted authority to “limit a party’s pursuit of otherwise discoverable information where the burden if a discovery request is likely to outweigh the benefits,” based on these factors:

  1. Needs of the case
  2. Amount in controversy
  3. Each parties’ resources
  4. Importance of the issues in the action
  5. Importance of the discovery in resolving the issues

The court ruled that the Defendant’s expenses to complete the search and collection for Plaintiff would be insignificant compared to the millions of dollars spent by Plaintiff to review the material. When evaluating the reasonableness of search terms, the court will consider a variety of factors, including:

  • Scope of documents to be searched and whether the search is restricted to specific custodians or data sources
  • If date restrictions are imposed for the search
  • “Whether the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents”
  • “Whether the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue”

I-Med Pharma, Inc. v. Biomatrix, Inc. offers guidance when it comes to formulating search terms for collection and review.  Creating search terms with reasonable parameters will lead to a more targeted collection, thus reducing costs for the most expensive part of discovery, review.

To learn more about how to conduct a targeted collection and formulate reasonable search terms click here.

 

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how  to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.



2 Responses to “E-Discovery Search Terms: What Are Reasonable E-Discovery Search Parameters?”

  1. Mark Walker says:

    It is absolutely baffling to me that lawyers continue to agree to search terms that are neither validated, nor tested. There is a better way. Sitting down with the opposition and coming up with an agreed upon set of terms to start with is just a starting point. Those terms then need to be tested, validated and then altered, added to, refined by a methodology that measures the effectiveness of terms being evaluated. But, this is old news for many. Unfortunately, we continue see cases like this where many lawyers don’t seem to be getting the message. Finally, using search terms to filter at the point of collection is risky without the right technology and workflow. It is absolutely a considerable risk if you’re using filters, not just terms that are likely to change.

  2. E-Discovery Search Terms: What Are Reasonable E-Discovery Search Parameters? « The Source says:

    [...] Thankfully, the law is fairly straightforward and allows the judge the discretion to limit discovery requests that are likely to outweigh the benefits. In this case, the appeal was denied by the US District Court. You can read more about it here. [...]

Leave a Reply