I was reading over Cliff Shnier’s June 2008 column on InsideCounsel.com entitled "A time to reap, a time to cull." It is an excellent, concise overview of the workflow required for a successful e-discovery project, sprinkled with several doses of common sense on collecting and processing ESI.
Toward the end, Cliff discusses the perils of too-hastily concocting a list of keywords used for filtering and culling electronic data. He points readers to In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (D. Fla. 2007) (generously hosted on the Electronic Discovery Blog; good cases summaries located here and here).
I dug a little deeper into the case, and discovered a fascinating litany of delinquent behavior surrounding basic principles of e-discovery. The Court was not happy.
First, the Court lists the shortcomings of defendant’s production:
"… although [Defendant] has a system to deliver voicemail, faxes, and video into Outlook inboxes, none has been produced; there are few emails from some custodians, and email boxes are missing from alternative email boxes. Plaintiffs also contend that many relevant emails and documents were not identified and produced because [Defendant] performed an unreasonable key word search."
And in a footnote, the Court provides some examples of words and phrases that were omitted from the "unreasonable key word search:"
"Seroquel’s generic name [(The case involves a slew of cases over the anti-psychotic drug Seroquel)], acronyms for diabetes, hyperglycaemia spelled the British way; and endocrine. The search method apparently failed to include common misspellings or the singular forms of words and failed to make allowance for spaces or dashes."
The Court doesn’t let the issue rest:
"The key word search was plainly inadequate. … While key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, [Defendant] undertook the task in secret."
As you can imagine, the Court would have rather the parties agreed on a set of key words together. I especially like how the court ever-so-gingerly emphasized the importance of having technical expertise at these meetings:
"Many of the other technical problems identified by Mr. Martin and Mr. Jaffe [e-discovery specialists for the plaintiff] likely could have been resolved far sooner and less expensively had [Defendant] cooperated by fostering consultation between the technical staffs responsible for production. Instead, [Defendant] shielded its third party technical contractor from all contact with Plaintiffs. This approach is antithetical to the Sedona Principles and is not an indicium of good faith."
After dismissing other arguments from the Defendant, and recognizing that many of the disagreements could have easily been worked out in a more efficient manner, the Court provides a strong conclusion:
"The Court finds that [Defendant] has been ‘purposely sluggish’ in making effective production to Plaintiffs. … It is undisputed that the [completed production] … had load file, metadata, page break and key word search problems, making the 10 million pages of documents unaccessible, unsearchable, and unusable as contemplated under the Rules."