Many companies are tempted to seek cost savings relating to electronic discovery by conducting some or all aspects of the process in-house. It is undeniably true that these efforts could save significant money in your e-discovery budget. But, as the recent decision in National Day Laborer Organizing Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al. (NDLON) suggests, these efforts are also likely to meet skepticism, or even disfavor, and may result in sanctions, court orders that require duplication of effort or other unexpected costs.
On July 13, Judge Shira Scheindlin issued her opinion in the NDLON case. That case involves a Freedom of Information Act (FOIA) request issued to the U.S. Immigration and Customs Enforcement Agency, the U.S. Department of Homeland Security, the Executive Office for Immigration Review, the Federal Bureau of Investigation (FBI) and the Office of Legal Counsel seeking documents and information relating to Secure Communities, a federal immigration enforcement program launched in 2008. Although this was a FOIA case, Judge Scheindlin recognized in her opinion the similarities between the government’s obligations in responding to a FOIA request and a civil litigant’s obligations in responding to discovery requests. Judge Scheindlin’s decision likely will be cited in future e-discovery cases and will help to shape the law as it relates to e-discovery.
In NDLON, Judge Scheindlin considered the adequacy of an in-house search and collection effort conducted by the defendant government agencies, primarily by the identified custodians themselves. The defendants argued that “it is… unclear why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis.” Judge Scheindlin was not convinced, and ordered the defendants to provide more detailed information relating to the searches they had conducted, conduct numerous additional searches and work with the plaintiffs and the court to develop an acceptable search and collection plan, all adding to the already expensive search, collection and production that defendants had already completed.
As Judge Scheindlin first stressed, “[A defendant] will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched the full text of documents.” The lesson here is clear: If you intend to conduct in-house search and collection efforts, it is imperative that you maintain detailed records of the steps that you have taken. It is not adequate to provide a list of simple search terms without describing in detail how you used those terms. And, if you are unable to provide adequate detail when challenged, a court likely will order you to conduct further searches and additional collection, increasing the costs of your e-discovery efforts.
Judge Scheindlin went on to describe what she determined to be a more fundamental defect in the defendants’ collection efforts:
“Most custodians cannot be ‘trusted’ to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. Searching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.
“Simple keyword searching is often not enough: Even in the simplest case requiring a search of online email, there is no guarantee that using keywords will always prove sufficient. There is increasingly strong evidence that "keyword searching is not nearly effective as identifying relevant information as many lawyers would like to believe." As Judge Andrew Peck—one of this Court’s experts in e-discovery—recently put it: "In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish’… Keyword searches usually are not very effective."
This also provides a clear lesson. First, this court at least is inherently skeptical of in-house personnel’s ability to conduct reasonable searches. This may be reason enough to avoid this route and the accompanying risk of being ordered to redo your work later. But, more importantly, there is an increasing recognition of the limited effectiveness of simple keyword searching. This means that parties in litigation must be prepared to employ more sophisticated search techniques, including Boolean searches and, in some cases, “computer-assisted” or “predictive” coding, and to have the technical expertise and technology to employ them in the most effective ways.
Thus, for those who wish to keep this process in-house, it will become necessary to train employees and obtain technologies that allow for these more sophisticated search efforts. For many companies, it will be more efficient and economical to employ an e-discovery firm to conduct the search and collection of electronically stored information (ESI) than to build this expertise in-house.
There is no blanket rule that forbids the use of in-house personnel to search and collect potentially responsive ESI for e-discovery purposes. And, in smaller cases, it may be appropriate. However, before heading down that path, it is essential that a company consider the risk that a court will later scrutinize its process and order it to conduct costly duplicative efforts to satisfy the burden of establishing that it has conducted a reasonable search. To best control the e-discovery budget, companies should analyze these issues at the outset of every case and develop a comprehensive e-discovery plan. They should memorialize the plan, if at all possible, in an agreed-upon e-discovery protocol with the opposing party. And, in all cases, parties must be prepared to explain in detail their exact techniques, the sophistication of their methods and technology and the expertise of their personnel to support a finding of reasonableness if challenged.