eDiscovery Daily Blog
Important Considerations when Negotiating Search Terms with Opposing Counsel – eDiscovery Best Practices
Negotiating search terms with opposing counsel has become commonplace to agree on the scope of discovery. However, when you negotiate terms with the other side, you could be agreeing to produce more than you think. Craig Ball’s latest article in Law Technology News discusses the issues and tries to answer the question: Are Keywords Just Filters?
Many attorneys still consider attorney eyes-on linear review as the final step to decide relevance of the document collection, but Craig notes that “requesting parties frequently believe that by agreeing to the use of a set of keywords as a proxy for attorney review, those agreed searches serve as a de facto request for production and define responsiveness per se, requiring production if not privileged.”
While producing parties may object to keyword search as a proxy for attorney review, Craig notes that “there’s sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols and drafting memorializing agreements.”
Craig states what more and more people have come to accept, “Objective culling, keyword search, and emerging technologies such as predictive coding make clear that the idealized view of counsel as ultimate arbiter of relevance is mostly myth.” We discussed a study regarding the reliability of review attorneys in a post here. “Consequently, as more parties forge detailed agreements establishing objective evidentiary identifiers such as dates, sources, custodians, circulation, data types, and lexical content, litigants and courts grow impatient with the cost and time required for attorney review and reluctant to give it deference.”
Craig’s article discusses the issue in greater depth and even provides a couple of examples of agreed upon language – one where keyword search would be considered as a filter for attorney review, the other where it would be considered as a replacement for review. His advice to producing parties: “In effect, requesting parties regard an agreement to use queries as an agreement to treat those queries as requests for production. Producing parties who reject this thinking would nevertheless be wise to plan for opponents (and judges) who embrace it.”
It’s a terrific article and I don’t want to steal all his thunder, so click here to check it out.
BTW, Craig is no stranger to this blog – in addition to several of his articles we’ve referenced, we’ve also conducted thought leader interviews with him at LegalTech New York the past three years. Here’s a link if you want to check those out.
So, what do you think? Do you negotiate search terms with opposing counsel? If so, do you use the terms as a filter or a proxy for attorney review? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.