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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Carefully Choose Search Protocol In Litigation
Posted by Gregg Mayer on Wednesday, April 16th, 2008
A recent decision by an Illinois federal magistrate highlights the importance of carefully identifying keywords when searching through electronically stored information (“ESI”) for litigation.
In Autotech Technologies Ltd v. AutomationDirect.Com, Inc., ADC sought ESI related to customer communications from Autotech. After an initial dispute, the parties agreed ADC could use a third-party consultant to search the database. ADC crafted the keyword protocol.
After this search, the results produced approximately 10,000 pages. Autotech wanted ADC to come to its headquarters to review the documents. ADC wanted Autotech to produce everything under a clawback agreement – an agreement that provided Autotech could “clawback” any ESI it determined was not relevant after it was produced.
Unable to resolve the dispute, the parties went back to court. The magistrate ordered Autotech to disclose the 10,000 pages.
After the first review, ADC determined the 10,000 pages did not contain all of the information it wanted. For example, the information did not include the name of the Autotech representative who talked to each customer.
So the parties are back in court, with ADC asking that its consultant be allowed another crack at Autotech’s database.
Autotech countered that it followed ADC’s keyword protocol during the first search. Consequently, the results reflected what ADC asked for.
ADC wanted to sanction Autotech for failing to disclose all of the relevant ESI.
In a March 25 opinion, the magistrate determined that ADC’s consultant could redo the original search to determine if some documents were excluded; however, the consultant could not do a “free-ranging search of the database to determine whether a different protocol will yield the information that ADC now seeks.”
As a result, if ADC’s initial keyword searches were deficient, then they are stuck with the responses. During litigation, the CIO and e-Discovery team must ensure the search of another side’s ESI is comprehensive. As ADC may learn the hard way, if the first search fails, there may not be a second chance.
Posted in: Cost Allocation | Reasonably Accessible Information
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