Keywords: Where Cyber-Angels And Judges Fear To Tread

"Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics ... Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence."

This piquant observation was made by one of the most erudite judges in the area of e-discovery U.S. Magistrate Judge John Facciola, in U.S. v. O’Keefe (add citation, please, and date) with regard to the propriety of certain keyword search terms when locating and producing ESI.

In O’Keefe,a criminal case,, the Government was required to produce responsive ESI which was located in several offices around the world. In order to comply with this order, the Government searched paper and electronic files, using self-selected search terms to search email and stand-alone electronic documents. Accusing the Government of running an ineffective search which resulted in incomplete results, the defendants took the Government to task for failing to indicate how or why the selected search terms were chosen. This contention led to Judge Facciola’s surprising revelation that expert testimony may be required to determine the effectiveness of the search and the keyword search terms.

Being a serious point of contention in most electronic discovery matters, the selection keyword search terms are more art than science,and is often dependent upon the bias of the selector as well as what and how much information theproducing party wishes to divulge. Given Judge Facciola’s declaration above, one can now rightfully believe that a motion to compel broader discovery based on the assumption that the keyword search terms were inadequate, should probably be coupled with expert testimony on the issue.

This decision is likely to gladden the hearts of those who toil in the ever-burgeoning industry of forensic consultation, in which gross revenues exceed Three Billion Dollars.

1:37 PM