On 19 March 2009, U.S. Magistrate Judge Peck issued an opinion that he expressly intended as “a wake-up call to the Bar in this District about the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).” The opinion was William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., (S.D.N.Y. 2009), 2009 WL 724954, No. 07 Civ. 10639.

The suit involved alleged delays and defects in the construction of the Bronx County Hall of Justice. At issue were electronic records held by Hill International the company that managed the project for the owner of the building (Dormitory Authority of New York or DAS-NY) as well as other projects. The owner wanted the search restricted to “DAS-NY,” “Dormitory Authority,” and “Authority” as well as the names of the other parties to the action. DAS-NY also added “Court! In connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo”.

The other parties wanted thousands of additional search terms including terms like “sidewalk,” change order,” etc. that would have resulted in the production of virtually all of Hill’s records even those involving other projects.

The court was frustrated that Hill, a non-party, did not participate in resolving the issue or informing the court of the content of the collection other than saying that DAS-NY’s terms were too narrow and the other parties’ terms were too broad.

The court ruled that the search would be conducted using DAS-NY’s terms plus the names of the individuals who worked on the Bronx Courthouse project. However, it indicated its displeasure at having to in essence operate in the dark in making decisions without being informed by the record custodian about the terms used in the records, and in the absence of cooperation by the parties.

The court strongly endorsed the “Cooperation Proclamation” issued by the Sedona Conference which encourages the parties to litigation to cooperate in developing a strategy. The proclamation is available online and is well worth reading; it will be often cited in the coming months and years. One significant point was that the judge pointed out in footnote three that he was NOT deciding whether expert testimony would be required concerning the search terms or strategy used by a party:

This Court need not now decide whether expert testimony is required; what is required is something other than a lawyer's guesses, without client input, and without any quality control testing to see if the search terms produce reasonably all the responsive ESI and limited “false positives.

RIY (Read It Yourself)