Toward a New Jurisprudence of Information Retrieval: What Constitutes a "Reasonable" Search for Digital Evidence When Using Keywords?

The December 2006 amendments to the Federal Rules of Civil Procedure have highlighted the importance of digital evidence in U.S. civil litigation by expressly recognizing a new term, 'electronically stored information' or 'ESI.'1

References incorporating the ESI term are now to be found in a variety of discovery contexts, including requests for production, interrogatories, pre-trial conferences, and what are known as initial 'meet and confers', where parties are expected to discuss all manner of issues surrounding the preservation of, formatting of, and access to digital evidence in their respective possession and control that might be relevant at a later stage of legal proceedings.2 Under these new rules, both the expectations of judges and the behaviour of parties and their counsel are changing, including how parties are approaching the task of searching for relevant digital evidence in response to discovery obligations. In a remarkable series of recent court decisions, judges have questioned, challenged, and even applied sanctions against parties for their failure to act reasonably in conducting what are known as 'keyword' searches for ESI. This is a new development in the law, with far-reaching implications not only on...

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