Gross Construction Associates, Inc., v. American Mfrs. Mutual Ins. Co., (2009) was a multi-million dollar dispute over alleged defects and delays in the construction of the Bronx Criminal Court Complex. The construction management company, a non-party to the litigation, sought to produce relevant ESI (as required), but without producing its entire e-mail database. Both of the parties had suggested such overly common construction terms as “sidewalk”, “driveway”, and “budget”, which were unreasonable search terms. The non-party had an obligation to suggest reasonable search terms based upon its knowledge of employee classifications and abbreviations.
Magistrate Judge Peck warned lawyers of their responsibility to use e-discovery practices that are reasonably designed to retrieve responsive ESI. Not performing basic e-discovery tasks, such as interviewing key custodians about their communication practices, is inexcusable.
Lessons from this case are
Select keywords and search terms with input from the custodians of that ESI to learn the words and abbreviations they use. You need to consult them to be able to reasonably identify and retrieve responsive ESI. Without substantive knowledge, you’re unable to engage in a meaningful Rule 26 meet-and-confer process.
Test the proposed methodology to verify its accuracy in retrieving responsive ESI and eliminating false positives.
Don’t force the court to draft keyword searches.
Be sure to cooperate with your opponent.
Hire an expert if you need one.
Seminal decisions discussing the critical importance of transparency and agreement on search methodology, including: Victor Stanley, Inc. v. Creative Pipe, Inc., United States v. O’Keefe, and Equity Analytics, LLC v. Lundin, provide guidance on the minimum expectations for reasonable and effective e-discovery representation.
Check out The Sedona Conference Cooperation Proclamation at www.the sedona conference.org for more information.