Could this be privilege? ELF AND Shelf OR El* OR Shel* AND SANTA BUT NOT CLAUS
A big question being tossed around this holiday season in the eDiscovery community and by Boolean search fanatics everywhere is whether or not search terms should be worthy of a courts protection? A New York Law Journal article, called No Disclosure: Why Search Terms are Worthy of Courts Protection seems to have kicked off the debate.
Specifically the authors of the New York Law Journal article believe that disclosure of search terms used to exclude data from disclosure compromises the work product privilege and argue that the courts should “recognize that a search term is more than a collection of words, rather, the culmination of an attorney’s interaction with the facts of the case.”
So should ELF AND Shelf OR El* OR Shel* AND BOOK* OR SHEL* AND SANTA BUT NOT CLAUS Privilege?
During discovery and when both parties agree to meet and confer to discuss discovery and dealing with high volumes of electronically stored information certain search terms are typically agreed upon by both parties. The standard format for search terms is typically in Boolean form when users combine keywords with Boolean operators which enable you to test the truth or falsity of conditions such as AND, NOT and OR to further produce more relevant results.
Craig Ball throws Out the Sash
Craig Ball, a major thought leader in the eDiscovery field, takes the opposite viewpoint regarding search terms as privilege in a recent blog posting According to Ball, “Search terms are precisely what the authors claim they are not: search terms are a collection of words. They are lexical filters. Nothing more.” According to Ball, “Search terms deserve no more protection from disclosure than date ranges, file types and other mechanical means employed to exclude data from scrutiny. Search terms strip out information that will never see the light of day nor benefit from the application of lawyer judgment as to their relevance. In that sense, search terms are anathema to the core principles of work product and warrant more, not less, scrutiny.”
What has Beethoven got to do with Christmas?
Let’s not forget about the courts role in this process which is to ensure the fairness of the overall discovery process and referee discovery related objections. When dealing with a massive amount of electronically stored information cooperation is critical between parties on discovery methodology, what type of data is discoverable and what search terms should be put in place to minimize legal review and expense. This is the importance of the meet and confer and should not be forgotten during this Christmas season of giving.
Sources:
https://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202631327213&thepage=1&slreturn=20131123100614
https://ballinyourcourt.wordpress.com/2013/12/16/transparency-of-process-no-peril-to-work-product/
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