Collaboration and Search Terms

Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York has given us some more definition of what judges mean by “coperation” within the framework of the Sedona Cooperation Proclamation in his recent opinion in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009).  In fact, the opinion opens up with telling words as the very first paragraph states:

“This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.”

The case involved disputes over delays and defects surrounding the construction of the Bronx County Hall of Justice and the issue at hand was how to search emails of the non-party contruction manager of the project, including the separation of email relating to other projects and the formualtion of specific search terms for the relevant emails.

The court quoted decisions by Magistrate Judges Grimm and Facciola discussing the best way to agree upon proper search terms  but noted that apparently those explanations had not  “…gotten thru to the members of this District.”   He then went on discuss the need for care and collaboration in selecting search terms,  highlighting the ned for careful advance planning.

He then closed with a very specific admonition:

“Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar-even those lawyers who did not come of age in the computer era-understand this.”

Anyone looking for a clear delineation of how judges view the process of cooperation, specifically with regard to drawing up search terms, would dow ell to read this decision. The full text can be found at  http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_William%20A%20Gross.doc

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