Electronic Discovery & Records Management - Tip of the Month: The Use of Search Terms

Keywords: search terms, ESI, risks, benefits, keywords

Scenario

A large corporation has been sued on behalf of a putative nationwide class. As discovery begins, in-house counsel is concerned about the cost and time involved in collecting, reviewing and producing the relevant emails, shared documents and other electronically stored information (ESI) throughout departments and across offices. As a way of containing these costs, in-house counsel is considering applying targeted keyword searches to the company's ESI to narrow the scope of the document collection, review and production.

Why Use Search Terms? Keyword searches apply a set of designed queries against ESI to identify documents that contain the key words or concepts. This enables parties to perform the difficult, and frequently expensive, task of separating potentially relevant materials from irrelevant ones using an automated, time-saving process. Courts have traditionally accepted keyword searches as a means of evaluating large ESI collections. Accordingly, keyword searches are among the most common automated tools for fulfilling the obligation to conduct a diligent search.

Risks and Benefits of Using Search Terms

Keyword Searches May Be Discoverable under Some Circumstances Parties often work with their in-house or external counsel to formulate keyword searches. As a result, the keywords selected may also incorporate attorney opinion work product and, therefore, be shielded from disclosure by the attorney client privilege and/or the work product doctrine. However, some courts have taken the position that the fact that keywords were used to collect the documents is not, by itself, protected under either the attorney-client privilege or the work product doctrine. There are even courts that have held that the keywords used to conduct an electronic search may be discoverable despite the fact that they may reflect attorneys' opinions about what may be relevant in the case. These courts have concluded that keywords relate to the facts contained in the documents to which they are applied and do not believe that the selection of keywords reflect an attorney's legal advice or mental impressions. Because a keyword search used during pre-trial discovery may be discoverable, parties can reduce the risk of disclosure of attorney mental impressions by selecting keywords, and crafting searches, in a way that does not disclose overarching case theories or other attorney opinion work product.

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