Choosing Keywords For ESI Disclosures

Posted by Gregg Mayer on Wednesday, March 5th, 2008   

When retrieving electronically stored information (“ESI”) for litigation, parties often rely on keyword searches to identify relevant email and other ESI needed to be disclosed. Choosing just the right words can be tricky, as a recent article explains:

Lawyers, and their clients, may have different goals in mind when developing keyword searches. A requesting party may want to force the opponent to produce a massive amount of data, making the litigation more expensive and increasing the likelihood of settlement. Conversely, a producing party may want to produce massive amounts of data in a difficult form to review, so that the opponent may overlook damaging evidence.

Alternatively, one or both parties may want to locate and produce only the most relevant information, avoiding the need to review large quantities of irrelevant data for privilege, relevancy, and etcetera. Or the parties may not think much about it, with the requesting party asking for search terms developed in an informal brainstorming session and the responding party just looking for whatever the opponent seeks. When the parties disagree about whether a search is sufficiently broad, too narrow, or too expensive to implement, a Magistrate or Judge must decide.

The article notes that the recent decision of United States v. O’Keefe (discussed earlier on CIOLaw.org here ) explains that expert testimony may be needed in the future to determine whether adequate keyword search terms were used in finding ESI to disclose.

Read the rest of the article from Wisconsin Technology Network here.

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