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Unpublished Paper
Search Method in Discovery: How Rule 26's Silence Poses a Risk of Sanctions to Attorneys and Increases The Cost of Litigation
ExpressO (2012)
  • Khanh T Huynh, California Western School of Law
Abstract
The 2006 Amendments to the Federal Rules of Civil Procedure (FRCP) are the first codified references in the Rules to issues of electronic discovery (e-discovery). Still, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolean search terms can be difficult to run. The cost to run complicated searches can substantially increase the discovery cost. The lack of rules addressing search terms in FRCP also leaves many parties at risk of sanction. Unlike other types of information, electronic stored information (ESI) can sometimes be extracted from third party’s servers, such as emails hosted on Google’s server. Disagreement on search terms may lead to opponents using data extracted from third party servers as evidence of failure to produce relevant documents and consequently seeking sanction. FRCP 26 needs to address e-discovery in greater detail to stop this problem.
Keywords
  • Electronic discovery,
  • search terms,
  • FRCP 26
Disciplines
Publication Date
January 6, 2012
Citation Information
Khanh T Huynh. "Search Method in Discovery: How Rule 26's Silence Poses a Risk of Sanctions to Attorneys and Increases The Cost of Litigation" ExpressO (2012)
Available at: http://works.bepress.com/khanh_huynh/1/