John Facciola was one of the first e-discovery expert judges to consider the adequacy of a producing parties keyword search efforts in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). He first observed that keyword search and other computer assisted legal search techniques required special expertise to do properly. Everyone agrees with that. He then reached an interesting, but still somewhat controversial conclusion: because he lacked such special legal search expertise, and knew full well that most of the lawyers appearing before him did too, that he could not properly analyze and compel the use of specific keywords without the help of expert testimony. To help make his point he paraphrased Alexander Pope‘s famous line from An Essay on Criticism: “For fools rush in where angels fear to tread.”
Here are the well-known words of Judge Facciola in O’Keffe (emphasis added):
As noted above, defendants protest the search terms the government used. 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. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?; 13 Ricn. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008).
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. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.
Many courts have followed O’Keffe, even though it is a criminal case, and declined to step in and order specific searches without expert input. See eg. the well-known patent case, Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012). The opinion was by U.S. Magistrate Judge Paul S. Grewal, who later became the V.P. and Deputy General Counsel of Facebook. Judge Grewal wrote:
But as this case makes clear, making those determinations often is no easy task. “There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.”
Unfortunately, despite being a topic fraught with traps for the unwary, the parties invite the court to enter this morass of search terms and discovery requests with little more than their arguments.
More recently, e-discovery expert Judge James Francis addressed this issue in Greater New York Taxi Association v. City of New York, No. 13 Civ. 3089 (VSB) (JCF) (S.D.N.Y. Sept. 11, 2017) and held:
The defendants have not provided the necessary expert opinions for me to assess their motion to compel search terms. The application is therefore denied. This leaves the defendants with three options: “They can cooperate [with the plaintiffs] (along with their technical consultants) and attempt to agree on an appropriate set of search criteria. They can refile a motion to compel, supported by expert testimony. Or, they can request the appointment of a neutral consultant who will design a search strategy.” Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at *4 (S.D.N.Y. Nov. 21, 2012).
I am inclined to agree with Judge Francis. I know from daily experience that legal search, even keyword search, can be very tricky, depends on many factors, including the documents searched. I have spent over a decade working hard to develop expertise in this area. I know that the appropriate searches to be run depends on experience and scientific, technical knowledge on information retrieval and statistics. It also depends on tests of proposed keywords; it depends on sampling and document reviews; it depends on getting your hands dirty in the digital mud of the actual ESI. It cannot be done effectively in the blind, no matter what your level of expertise. It is an iterative process of trial and errors, false positives and negatives alike.
Enter a Judge Braver Than Angels
Recently appointed U.S. Magistrate Judge Laura Fashing in Albuquerque, New Mexico, heard a case involving a dispute over keywords. United States v. New Mexico State University, No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017). It looks like the attorneys in the case neglected to inform Judge Fashing of United States v. O’Keefe. It is a landmark case in this field, yet was not cited in Judge Fashing’s order. More importantly, Judge Fashing did not take the advice of O’Keefe, nor the many cases that follow it. Unlike Judge Facciola and his angels, she told the parties what keywords to use, even without input from experts.
The New Mexico State University opinion did, however, cite to two other landmark cases in legal search, William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) by Judge Andrew Peck and Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) by Judge Paul Grimm. Judge Fashing held in New Mexico State University:
This case presents the question of how parties should search and produce electronically stored information (“ESI”) in response to discovery requests. “[T]he best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009). Cooperation prevents lawyers designing keyword searches “in the dark, by the seat of the pants,” without adequate discussion with each other to determine which words would yield the most responsive results. Id.
While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.
* * *
Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.
Id. (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008)).
Although NMSU has performed several searches and produced thousands of documents, counsel for NMSU did not adequately confer with the United States before performing the searches, which resulted in searches that were inadequate to reveal all responsive documents. As the government points out, “NMSU alone is responsible for its illogical choices in constructing searches.” Doc. 117-1 at 8. Consequently, which searches will be conducted is left to the Court.
Judge Laura Fashing had me in the quote above until the final sentence. Up till then she had been wisely following the four great judges in this area, Facciola, Peck, Francis and Grimm. Then in the next several paragraphs she rushes in to specify what search terms should be used for what categories of ESI requested. Why should the Court go ahead and do that without expert advice? Why not wait? Especially since Judge Fashing starts her opinion by recognizing the difficulty of the task, that “there are well-known limitations and risks associated with them [keyword searches], and proper selection and implementation obviously involves technical, if not scientific knowledge.” Knowing that, why was she fearless? Why did she ignore Judge Facciola’s advice? Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?
Judge Fashing recognized that she did have enough facts to make a decision, much less expert opinions based on technical, scientific knowledge, but she went ahead and ruled anyway.
Although NMSU argues that the search terms proposed by the government will return a greater number of non-responsive documents than responsive documents, this is not a particular and specific demonstration of fact, but is, instead, a conclusory argument by counsel. See Velasquez, 229 F.R.D. at 200. NMSU’s motion for a protective order with regard to RFP No. 8 is DENIED.
NMSU will perform a search of the email addresses of all individuals involved in salary-setting for Ms. Harkins and her comparators, including Kathy Agnew and Dorothy Anderson, to include the search terms “Meaghan,” “Harkins,” “Gregory,” or “Fister” for the time period of 2007-2012. If this search results in voluminous documents that are non-responsive, NMSU may further search the results by including terms such as “cross-country,” “track,” “coach,” “salary,” “pay,” “contract,” or “applicants,” or other appropriate terms such as “compensation,” which may reduce the results to those communications most likely relevant to this case, and which would not encompass every “Meaghan” or “Gregory” in the system. However, the Court will require NMSU to work with the USA to design an appropriate search if it seeks to narrow the search beyond the four search terms requested by the United States.
Judge Fashing goes on to make several specific orders on what to do to make a reasonable effort to find relevant evidence:
NMSU will conduct searches of the OIE databases, OIE employee’s email accounts, and the email accounts of all head coaches, sport administrators, HR liaisons working within the Athletics Department, assistant or associate Athletic Directors, and/or Athletic Directors employed by NMSU between 2007 and the present. The USA suggests that NMSU conduct a search for terms that are functionally equivalent to a search for (pay or compensate! or salary) and (discriminat! or fair! or unfair!). Doc. 117-1 at 13. If NMSU cannot search with “Boolean” connectors as suggested, it must search for the terms “pay” or “compensate” or “salary” and “discriminate” or “fair” or “unfair” and the various derivatives of these terms (for example the search would include “compensate” and “compensation”). The parties are to work together to determine what terms will be used to search these databases and email accounts.
Judge Laura Fashing hangs her hat on cooperation, but not on experts. She concludes her order with the following admonishment:
The parties are reminded that:
Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.
Of course I agree with Judge Fashing’s concluding reminder to the parties. Cooperation is key, but so is expertise. There is a good reason for the fear felt by Facciola’s angels. They wisely knew that they lacked the necessary technical, scientific knowledge for the proper selection and implementation of keyword searches. I only wish that Judge Fashing’s order had reminded the parties of this need for experts too. It would have made her job much easier and also helped the parties. Sometimes the wisest thing to do is nothing, at least not until you have more information.
There is widespread agreement among legal search experts on such simplistic methods as keyword search. They would have helped. The same holds true on advanced search methods, such as active machine learning (predictive coding), at least among the elite. See TARcourse.com. There is still some disagreement on TAR methods, especially when you include the many pseudo experts out there. But even they can usually agree on keyword search methods.
I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:
- Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
- Motions supported by expert testimony and facts regarding the search.
- Appointment of a neutral consultant who will design a search strategy.
Going it alone with legal search in a complex case is a fool’s errand. Bring in an expert. Spend a little to save a lot. It is not only the smart thing to do, it is also required by ethics. Rule 1.1: Competence, Model Rules of Professional Conduct. The ABA Comment two to Rule 1.1 states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Yet, in my experience, this is seldom done and is not something that clients are clamoring for. That should change, and quickly, if we are ever to stop wasting so much time and money on simplistic e-discovery arguments. I am again reminded of the great Alexander Pope (1688–1744) and another of his famous lines from An Essay on Criticism.
After I wrote this blog I did a webinar for ACEDS about this topic. Here is a one-hour talk to add to your personal Pierian spring.