Article by Anthony J. Diana , Robert E. Entwisle and Jason B. Fliegel

Originally published April 28, 2008

Keywords: electronic discovery, ediscovery, Rule 26(f), electronically stored information, ESI, keyword search, discovery, search and retrieval

Scenario

A large company is involved in a commercial litigation dispute that requires the collection and production of electronically stored information (ESI) maintained by its offices in the United States, Europe and Asia.  During the Rule 26(f) conference, the parties discuss a variety of topics but do not discuss the fact that the large company intends to use keywords to search its servers for responsive ESI.  Upon learning that keywords were used to identify responsive ESI, opposing counsel seeks a court order allowing submission of additional keywords to be used to search the company's servers.  Opposing counsel also seeks to re-depose several company officers, at the large company's expense, based on the supplemental production.

Using the Rule 26(f) Meet and Confer Process for Strategic Advantage

Unlike traditional hard copy documents, ESI often is not stored in a fashion that facilitates easy identification of responsive information, i.e., there is often no neatly labeled electronic "file cabinet."   Rather, parties frequently must harvest large volumes of data in an effort to ensure that they fulfill their obligations to collect and produce responsive, accessible information.  This process can be costly and fraught with risk.  While this may seem daunting, with the proper preparation and timely disclosure of a comprehensive preservation, collection and production plan, a party may use the meet and confer to strategically control discovery, and the costs associated with it. 

Indeed, early disclosure of a well-developed plan, at a time when the opposing party is unaware of how the producing party stores the information , limits the opposing party's ability to rationally object to the plan.  When the opposing party does gain additional insight, it may be too late to challenge the plan, as no objection had been previously raised.  This concept of early and comprehensive disclosure is counter-intuitive to many litigators, who often see providing any information to opposing counsel as contrary to the adversarial system.  But the courts are mandating such disclosure, and ignoring this requirement often inflates the risks and costs associated with discovery.  

For example, courts routinely focus on the defensibility of the process used to identify responsive information, with heavy emphasis on disclosure; courts also look to efforts made, where possible, to reach agreement with the opposing party on the search and review methods to be used. Courts recognize that the use of appropriate search methodology, including keyword searches, can be invaluable in managing the costs and time involved in collecting, reviewing and producing the significant volumes of data that come into play with ESI.

But importantly, courts will not hesitate to second guess methods of search and retrieval where no disclosure of the search methods to be used, or agreement with the opposing party, has been reached.  In In re Seroquel Products Liability Litigation, 2007 WL 2412946 at *16 (M.D. Fla. Aug. 21, 2007), the court raised the possibility of sanctions against the producing party for not having disclosed and discussed a planned method of searching for responsive documents with opposing counsel. 

Thus, there is a strong argument in favor of disclosing planned search and collection methods, including the data sources to be searched (custodians, databases, legacy data sources, etc.), the key terms and concepts to be utilized to search or cull information, and any date limitations.  Where possible, parties should attempt to agree on search protocols and procedures that allow for the possibility of refining or expanding those terms as discovery progresses and that are reasonably tailored to yield responsive information.  However, even if there is no agreement, disclosure of the search and collection methods may protect the disclosing party from any sanctions. 

Preparing for the meet and confer can facilitate the discussions; whenever practical, parties should come prepared with potential search terms, methods and protocols to assist the discussion.  To be prepared for the meet and confer, and to craft a reasonable ESI search, the party and its counsel should:

  • Discuss the subject matter of the litigation with the key players. It may be necessary to discuss whether certain topics are referred to in an abbreviated form or through acronyms;
  • Discuss the date parameters for each search, including when certain individuals were involved with the matter being litigated;
  • Run test searches using the identified keywords to see if they are over- or under-inclusive;
  • Consider using advanced ESI search methods through the use of Bayesian search systems or other forms of concept clustering, which can, in some cases, reliably and efficiently assist in reducing the amount of ESI that must be reviewed.
  • Create a comprehensive list of attorneys and their staff that may appear in the data to be searched, this will help identify potentially privileged documents at the outset;
  • Consult with IT personnel regarding the operation and search capabilities of the systems where the data are stored;
  • Learn about data sources or data types that are unique to the client, such as dynamic databases and proprietary software; and
  • Retain an expert that can assist in crafting a defensible search methodology.

Disclosure of ESI search methodology allows litigants to identify expectations and resolve, or seek court intervention to resolve, disputes before embarking on an expensive and potentially wasteful ESI search and review.

Learn more about Mayer Brown's Electronic Discovery & Records Management practice.

Visit us at www.mayerbrown.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2009. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.