Friday, July 8, 2011

e-Discovery Search Term Negotiation: The Impact on Time, Money and the Infliction of Emotional Distress

Search term negotiation, the reaching of an agreement with an opposing party about which words and phrases to use when responding to electronic discovery requests, is more relevant than ever. At the heart of the negotiation is a pursuit of the documented facts surrounding litigation, government or regulatory inquiry. Recent high-profile cases have brought the importance of search term negotiation to the public eye. This pursuit of facts and truth should always be of paramount importance within the justice system. However, behind the exercises of collecting relevant data, a different set of dynamics can center around cost, fairness, reasonableness, relevance, technology and time.

Case law and technology continue to evolve in this area, with case law seeming always a step behind the evolution of search engine technology, data and document retention policy. What frequently gets lost or forgotten in this evolution is the increasing burden placed on respondents. Even so, respondents themselves sometimes appear oblivious to the importance of the up-front exercise of agreeing on the terms that drive the search. Legal requirements will frequently dictate some of the search, but more frequently an agreement by both parties on the terms and methods applied to the search for relevant data will contribute more to the time and associated costs.

In-house counsel may not focus on the discovery request and pass these directly to litigation management or IT professionals to respond with little understanding of the broad and deep implications involved. Search tools and algorithms today are much more sophisticated than their Boolean predecessors. Gone are the days when we should allow a search term such as "Pro*" in order to find occurrences of the word Product. Tools now allow professionals to simply input the word "Product" and to then configure the tool to find variations of the word...Produce, Producer, and Production (now called "stemming"). This is only one example of the disconnect and the need for an appreciation of search term negotiations. At the heart of these negotiations there should not be muddying by respondents, nor leverage and pressure from the search terms, requester; the aim should be relevance with due consideration of the time, cost and distress to produce what is requested.

There is a precarious balance to be struck between reasonable search terms and ensuring adequate collection of pertinent data. The legal landscape in this area is not yet clearly mapped and the topography continues to shift. This makes the up-front exercise of negotiating the search terms to be used more important than ever. In today's pressing economic climate, the impacts are felt on time, money and the aggravation and distraction while the focus should remain on the just outcomes.

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