Selecting keywords for searching large volumes of electronically stored information (“ESI”) is an unavoidable, but necessary step in the process of electronic discovery. The parties to a case, or the court, may choose the terms for the search. However, an efficient alternative to both options involves a mediator, neutral, or special master with a thorough understanding of the legal elements of the case and the technology systems that will be subject to keyword search. This alternative can benefit both parties, as well as the court, because a “technology-aware” mediator can expedite an agreement that allows both parties to maintain oversight of the keyword selection process. This serves both parties’ interests because, as the Zubulake court noted, “[i]t might be advisable to solicit a list of search terms from the opposing party for [the purpose of preservation], so that [opposing counsel] could not later complain about which terms were used.” A poorly designed search term list guarantees that the parties will have to perform a series of subsidiary searches as gaps and problems in the original search become apparent. This can easily be mitigated with a mediator who knows the relevant law and technology. An effective search that results in responsive items being identified begins with the intangible creativity that forms a bond between knowledge of the law and technology.
Available at: http://works.bepress.com/daniel_garrie/7/