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Attorneys Must Craft E-Discovery Search Terms With Client Input

Image of Magnifying GlassA decision from United States District Court for the Southern District of Florida instructs attorneys to seek client input when compiling e-discovery search terms because they may be unfamiliar with their client’s business terminology.

In Procaps v. Patheon, Case No. 12-24356 (S.D. Fla. March 18, 2014), the court permitted a forensic analysis of Procaps’ electronic media after the company failed to implement a formal litigation hold and initially permitted its employees to search for electronic documents without a list of relevant search terms.  Ultimately Procaps’ attorneys compiled a list of keywords to collect their client’s electronically stored information (ESI).  However, Procaps is based in Columbia and its employees speak Spanish but the list of search terms consisted of eight English words. Patheon rejected the search terms as being “patently unreasonable” and expressed concern that they were compiled without client input.  Ultimately, Patheon filed a motion to compel when it appeared that counsel for Procaps did not believe they had an obligation to involve the client in the creation of a list of search terms.

At the hearing on the motion, Procaps’ attorney acknowledged an obligation to obtain to obtain client input when compiling e-discovery search terms but what troubled the court was that Procaps’ counsel did not seek client input until after being faced with a motion to compel.  Also troubling for the court was that that Procaps’ attorneys did not directly respond to questions from Patheon’s counsel about whether the client was involved with the compilation of search terms.

The court noted that “outside counsel must carefully craft the appropriate keywords, with input from the ESI custodians as to the words and abbreviations they use” because attorneys may not be sufficiently knowledgeable about their client’s business terminology.  It appeared to the court that counsel for Procaps did not seek client input until faced with a motion to compel and, as a result, awarded Patheon attorneys fees incurred in connection with the motion pursuant to Fed. R. Civ. Proc. 37(5)(A).  Rule 37 provides that if a motion to compel is granted, the party refusing the discovery must pay the reasonable expenses incurred by the moving party unless: 1) the motion was filed without a good faith effort to obtain the discovery prior to seeking court action; 2) the refusal to comply with the discovery request was substantially justified or; 3) circumstances make an award of fees unjust.

This case provides two lessons.  First, it establishes that transparency is important in e-discovery efforts.  Part of the reason the sanctions were ordered is because the court believed counsel failed to directly respond to questions from Patheon’s attorneys regarding client input into the search terms.  Second, the case also establishes why simply relying on the use of search terms may be an outdated approach to collecting and reviewing ESI.  The use of computer assisted review often lessens the need to rely on search terms to identify relevant and responsive documents.  Proper utilization of technology takes a great deal of subjectivity out of the collection process.

Posted on March 25, 2014 in E-Discovery, Meet and Confer Requirements

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.

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