Lawyers are now on notice that inadequate and “haphazard” keyword searches for relevant electronic stored information are no longer acceptable, write Paul, Weiss, Rifkind, Wharton & Garrison litigation partners H. Christopher Boehning and Daniel J. Toal in this week’s New York Law Journal, “Wake-Up Call on Slipshod Search Terms,” http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202430262330. 

In William A. Gross Constr. Assocs. Inc. v. American Mfrs. Mut. Ins. Co., U.S. Magistrate Andrew J. Peck of the Southern District of New York “appealed for keyword formulations based on careful thought, quality control, testing and cooperation.” That case involved a situation in which one party’s search terms were too narrow while the other’s terms were too broad. Both parties failed to compromise. As a result, Judge Peck was forced to design a methodology “without sufficient input from the parties or the relevant custodian.” He was not pleased with what he acknowledged was a less than perfect result. 

So what does Judge Peck consider an adequate keyword methodology? He gives four requirements. First and foremost, opposing counsel must cooperate. Second, lawyers must carefully design keywords. Third, the custodian of the ESI should participate in the keyword selection process. Finally, the technique should be validated or pass through a quality control process to ensure it is not overinclusive, underinclusive or allow privileged information to be disclosed.  

Peck concludes, “It is time that the Bar --- even those lawyers who did not come of age in the computer era – understand the importance of properly crafted electronic searches.”