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 nterests 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.

Companies and counsel faced with e-discovery have little choice but to use search terms or “keywords” in a threshold exercise to separate relevant from non-relevant information. Traditional document review techniques involving hard copies are not practical or financially feasible when reviewing a seemingly endless amount of documents in ESI form. Usually, finding relevant information in ESI form requires counsel or the court to identify search terms and apply these terms across all potential evidence in the matter. Although recent searches have become more sophisticated through the use of statistical sampling and predictive coding techniques, disputes over search methodology often result in the court ultimately determining how the search will be conducted. For example, in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., the plaintiff’s proposed keyword search was too narrow and the defendant’s proposed keyword search was too broad, so the court was left in the “uncomfortable position” of crafting and imposing its own search methodology for the parties. While the courts may be the option of last choice in resolving these matters, they also realize that even their expertise has limits and that their mandated involvement may not be the best solution.

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