Go Fish! The Inadequacy of Mere Keyword Searches in Electronic Discovery
The plaintiffs in National Day Laborer Organizing Network, et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012) were legal advocacy groups who sought documents pursuant to the Freedom of Information Act (FOIA) from multiple government agencies regarding an immigration enforcement program. After the defense production was received, the plaintiffs maintained it was legally inadequate under FOIA and that some agencies failed to disclose their search terms and others who did disclose their search terms were insufficient.
U.S. District Judge Shira A. Scheindlin went through each government agency to find some of the searches adequate and some woefully inadequate. On the subject of search terms, she said, “It is impossible to evaluate the adequacy of an electronic search for records without knowing what search terms have been used,” and “the precise instructions that custodians give their computers are crucial.” Id. at 33, 34. The Court noted that small mistakes could have huge consequences in electronic searches, for example:
- Misspellings could omit all relevant documents by accident;
- Choosing the wrong search fields and email analytics could dramatically change the search scope and results; and
- Misuse of Boolean operators could be very consequential.
Judge Scheindlin quoted Judge Andrew Peck (of the famous Da Silva Moore opinion) to say the way lawyers typically choose keywords is the equivalent of the child’s game “Go Fish.” Mere “keyword searches are usually not very effective.” Id. at 39.
So what does Judge Scheindlin recommend for the best practices for searching electronically stored information? Stay posted for Wednesday’s blog discussing her endorsement of electronic issue coding. Call us at 888-313-4457 for more information or review the plaintiff eDiscovery services our firm offers.