Search Terms Are More Than Mere Words

The use of search terms to separate irrelevant or unresponsive data from relevant or responsive information is commonplace. It is also common for parties to decide voluntarily to exchange search terms to increase transparency, ensure that documents are not excluded and limit the cost of discovery.[FOOTNOTE 1]

However, what should not become commonplace (and, sadly, is starting to) is the forced disclosure of search terms by courts. Not only are search terms not within the bounds of discovery, but they are windows into how counsel are considering and evaluating their case.

The obvious question is, other than the hyper-technical e-discovery practitioner, who cares about whether courts mandate the production of search terms? The answer lies in the nature of search terms themselves; they have become so common that we have forgotten what they are.

The answer: Search terms are not simply a random list of words that people think may be found in documents that are more likely important than other words. As courts have recognized, at their best, search terms are developed by counsel working with the client and interviewing "key players" to determine what is important and how people discussed it.[FOOTNOTE 2]

To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: David J. Kessler, Robert D. Owen, and Emily Johnston