When confronted with an electronically stored information (ESI) issue, the first thing lawyers do—almost reflexively—is exchange a list of search terms and apply them broadly against all types of media. Many judges use the same approach even though, conservatively, search terms result in 90 percent false positives. These false hits are very expensive to cull and review. Thus, a key to controlling ESI discovery costs is to use search terms carefully.
A great illustration is I-Med Pharma Inc. v. Biomatrix, Inc., 2011 U.S. Dist. LEXIS 141614 (D. N.J. Dec. 9, 2011). The key issue involved the use of unallocated space and search terms. Unallocated space is the area on the hard drive where “deleted” files are stored. Although there are files in this space, the computer sees the space as open and available.
- The scope of documents searched and whether the search is restricted to specific computers, file systems, or document custodians
- Any date restrictions imposed on the search
- If the search terms contain proper names, uncommon abbreviations, or other terms unlikely to occur in irrelevant documents
- If operators such as “and,” “not” or “near” are used to restrict the universe of possible results
- If the number of results obtained could be practically reviewed given the economics of the case and the amount of money at issue
The moral of this story is clear: Never agree to collect and produce documents based on search terms unless you test the terms first to see how many potential hits there are. Many times I am asked to get involved in cases where search terms have already been agreed upon but no one has run the terms first to see how many hits the terms actually trigger. This is huge mistake.