A practical tip for keyword searching

March 25th, 2009 | By Steve Puiszis

Wm. A. Gross Constr. Assocs. v. American Mfrs. Mutual Ins. Co., 2009 WL 724954 (S.D.N.Y. March 19, 2009).

When the opening line of an ediscovery decision is: “This Opinion should serve as a wake-up call to the Bar in the District,” visions of another Qualcomn blowup immediately come to mind. When you realize the decision is about “the need for careful thought, quality control testing, and cooperation with opposing counsel in designing search terms or key words,” you guess this is another decision addressing the inadvertent waiver of privilege. Because ediscovery is easier to get wrong than it is to get it right, lawyers – being the cynical lot we are – immediately think the worst.

 Well, luckily for those involved in Gross Construction Associates, the decision’s opening salvo was a reflection of the judge’s frustration over having to design a keyword search when the parties could not agree on the terms to employ. While much of the decision retraces the same ground covered by the Victor Stanley and Equity Analytics decisions, the court does provide several interesting insights, and one practical tip to help prevent keyword searches from disintegrating into a game of Scrabble.

The decision arises out of a construction defects and delay claim involving the development of the Bronx County Hall of Justice. The Dormitory Authority of the State of New York (“DASNY”) was the “owner,” and employed Hill International as its construction manager on the project. Hill was not a party to the lawsuit.

DASNY agreed to produce Hill’s project-related documents and ESI to the other parties in the litigation. The issue confronting counsel, and the court, however, was how to segregate Hill’s project-related e-mails from those that were unrelated. Thus, the parties proposed to use the use of keyword searches to filter out the unrelated e-mails.

After DASNY proposed a number of keywords, the other parties “requested the use of thousands of additional search terms” which the court recognized “would require production of the entire Hill email database, since Hill’s business is construction management, and the proposed search terms would be used for any construction project.” There were two other complicating factors. First, Hill was also involved in an unrelated construction project involving the Bronx Zoo so the parties could not filter out the unrelated emails by simply inserting the term “Bronx’ to the list of keywords. Additionally, Hill did not use the standard “RE” line for its emails relating to the construction of the criminal court complex in order to distinguish those emails from emails relating to its other projects.

The court noted that Hill’s “only contribution” to the keyword dispute “was to agree that DASNY’s search terms were probably too narrow,” and that “the other parties’ terms were over-broad.” Further adding to the court’s frustration was that while Hill was in the best position to explain “what nomenclature its employees used in [their] emails,” it failed to do so because “it wanted to have as little involvement in the case as possible.” This left the court having to craft a keyword search methodology without adequate information from the parties.

The court noted that the issue presented “is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those that wrote the e-mails.” The court then recalled that in Victor Stanley, Judge Grimm observed:

Selection of the appropriate search and information retrieval techniques requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate to the task, and show that it is properly implemented.

The court in Gross Construction Associates then recalled that in his O’Keefe opinion, Judge Facciola explained:

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusions be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.

The court ultimately concluded that in addition to DASNY’s proposed keywords, the search should also include the names of the parties’ personnel involved in the Bronx Courthouse construction project.

The court in Gross Construction Associates did not address whether expert assistance is required in the development of a keyword search. Rather, it explained that what is required “is something other than a lawyer’s guesses, without client input, and without any quality control testing to see if the search terms produced reasonably all the responsive ESI and limited ‘false positives.’”

The court in Gross Construction Associates added a practical tip for lawyers when developing keyword searches. It noted that lawyers should carefully craft the appropriate keywords “with input from the ESI’s custodians as to the words and abbreviations they use.” Thus, as with other aspects of ESI discovery, communication with your client is a key. Don’t overlook speaking to your client’s employees to gain insight into how they draft, reference, and store their emails. This practical tip should help prevent your next attempt to draft a keyword search from turning into a game of scrabble with opposing counsel. To paraphrase the concluding line from Gross Construction Associates, this practical tip is one “that the Bar – even those lawyers who did not come of age in the computer era – understand.”

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