Facts
- A contractor and a surety litigated a multi-million-dollar dispute arising from alleged defects and delays on a major public construction project in the Bronx.
- Significant project records were maintained as electronically stored information (ESI), much of it held by the project construction manager, a non-party with extensive databases and email.
- During discovery, the parties agreed to use keyword searches to identify responsive ESI but could not agree on appropriate search terms or how to structure the searches.
- One proposed search set was narrowly drawn and likely to miss responsive documents; opposing proposals were broadly drawn and likely to generate large volumes of irrelevant material and unnecessary review costs.
- Counsel had not sufficiently consulted the data custodians and information-technology personnel to learn the terminology, abbreviations, and document practices used in the project records.
- The dispute was presented to a magistrate judge for resolution as an e-discovery methodology issue.
Issues
- What process must parties use under the Federal Rules of Civil Procedure to select, test, and refine keyword search terms for ESI production?
- When may a court reject proposed keyword searches as unreasonable because they are likely to be under-inclusive or over-inclusive?
Decision
- The court declined to adopt either side’s proposed keyword searches because they were not shown to be reasonable and risked significant under-inclusion or over-inclusion.
- The court directed the parties to follow a structured, cooperative process to develop search terms.
- The court required the parties to consult with knowledgeable custodians and IT personnel to identify how relevant concepts and project matters were actually described in the ESI.
- The court required testing, sampling, and iterative refinement of proposed terms to improve accuracy and control cost and burden.
- The court treated the dispute as one of discovery reasonableness and proportionality and intervened to require a defensible search methodology.
Legal Principles
- Keyword searching is not self-validating; search quality depends on careful term selection, testing, and quality control.
- Discovery search protocols that are clearly under-inclusive or overly burdensome may be rejected as inconsistent with reasonable and proportional discovery obligations.
- Counsel must make informed decisions about ESI search methods by consulting custodians and IT personnel and learning the client’s terminology and data systems.
- Cooperation between parties is expected in developing ESI search terms, including sharing proposals and refining them based on testing results.
- Sampling and iterative adjustment of search terms are appropriate tools to reduce false positives and false negatives and to support a reasonable discovery process.
Conclusion
The court resolved an ESI search-term impasse by rejecting untested, poorly designed keyword proposals and ordering a cooperative, empirically tested, iterative approach grounded in custodian and IT input and guided by proportionality and reasonableness in discovery.