Thursday, April 30, 2009

Slap on the Wrist

Click here for an article from the New York Law Journal on the use of "slipshod search terms" to retrieve electronically stored information. In a case decided March 19, 2009, William A. Gross Construction Associates v. American Manufacturers Mutual Insurance Company, U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York "issued a self-styled 'wake-up call' to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information 'by the seat of their pants,' Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation." The article goes into the terms that the parties used to search through email, which proved to be unhelpful; the judge was "therefore placed in the 'uncomfortable position' of having to construct a search term methodology without sufficient input from the parties or the relevant custodian." Peck complained that the case was "'just the latest example of lawyers designing keyword searches in the dark,'" without adequate consultation with the custodian of the information. He urged "in a footnote that what is required is more than a lawyer's guesses, without any quality control testing to ensure the search results are minimally overinclusive or underinclusive for responsive e-mails. Accordingly, care should be taken from the outset of disclosure to ensure proper selection and execution of a search methodology. Without appropriate care, a court cannot be confident that the producing party has disclosed all the required responsive material." The article concludes with the following observation: "Ironically, lawyers well-acquainted with computers may be more susceptible to thinking that keywords viable for a Google search should also suffice for ESI production. Peck has sounded the alarm that such haphazard searches will not pass muster any longer."

We spend a good deal of time in my Advanced Legal Research class on search terms that will work in print indexes as well as in online databases. I introduce students to the thesaurus feature on Lexis and Westlaw, and also to Burton's Legal Thesaurus. In the research guides they produce for the course, I require a "Getting Started" section which should include keywords that are relevant for the subject of the guide. Two of the reference librarians at the Pace Law Library, Vicky Gannon and Lucie Olejenikova, have produced a podcast on Generating Search Terms, which is designed to help students understand why this is a skill they need to master and to give them tools they can use in formulating terms for online and print searches.

Thanks to Cynthia Pittson for pointing out this article to me.

1 comment:

Betsy McKenzie said...

There is a huge push on in the legal profession and among an increasingly sophisticated and miffed judiciary to improve e-discovery. See my earlier OOTJ post about the ABA Journal article, The Perfect Search, which discusses a project that includes the Sedona Conference, some major changes to the Federal Rules of Evidence regarding e-discovery and links to Best Practices, a federal case, and a bunch of other stuff.