Given the ubiquitous use of general purpose search engines such as Google and attorneys' routine use of legal search engines such as Westlaw and LexisNexis, it is perhaps surprising that lawyers frequently falter in formulating search terms, or "keywords," designed to retrieve relevant e-mails and other electronically stored information.
Nevertheless, courts have time and again confronted haphazard and uncoordinated search methodologies for ESI.
Evidently weary of deficient keyword searches, U.S. Magistrate Judge Andrew J. Peck recently issued a self-styled "wake-up call" to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information "by the seat of their pants," Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation.
The magistrate judge's admonition arose in William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co.[FOOTNOTE 1] The case involved multiple parties and multimillion dollar claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice.
The Dormitory Authority of the State of New York, a public benefit corporation that acts as the developer of courthouses, directed the project. At the time of the discovery dispute, non-party Hill International served as DASNY's construction manager. DASNY consented to produce Hill's project-related documents and ESI to the other parties in the action.
As obviously relevant ESI, Hill's e-mails presented a classic challenge of devising a proper search methodology for production. Hill understandably did not want to produce e-mails unrelated to the Bronx courthouse project, but combing through the e-mails one by one to cull unrelated e-mails would have been time consuming and uneconomical.
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By: H. Christopher Boehning and Daniel J. Toal