A very interesting development set out in the default standard is in respect to search methodology. Specifically, the default standard holds that when a producing party uses search terms to find responsive information, it shall disclose such terms to the requesting party. This judicially mandated transparency with keywords presents an interesting question if the parties elect to use computer-assisted review technology in lieu of search terms. Since the default standard is silent, it is advisable that counsel engage the court and opposing counsel early on to gauge if using such technology is permissible.
Another interesting addition to the default standard is that a requesting party, absent a showing of good cause, cannot request more than 10 additional focused search terms. The default standard requires that, in using these additional keywords, the producing party must search non-custodial sources, meaning the most likely source of non-duplicative discoverable information and emails or other ESI repositories relating to the group of 10 custodians. Here, counsel would be well served by engaging in a dialogue around any such restrictions with the technical stakeholders involved in the search, because often what is obvious to a technologist might not be to counsel.
Further, although the default standard is not clear as to what constitutes a restriction, counsel would benefit from having a firm grasp on the capabilities and limitations of any search tools being utilized. Lawyers should consider maintaining a list of such limitations and provide this to outside counsel at the onset of the discovery process.
Given that the default standard requires the producing party to disclose the desired search terms to the opposing party, counsel is advised to pay particular attention to the details of the search because selecting the wrong terms, fields, time frame, or document type can determine the cost and value the discovery provides and lead to unnecessary conflict with the requesting party. When selecting terms counsel should always remember that they are asking a machine to search data and not a human being, meaning that the machine is not likely to pick up cultural jargon, typographical errors, or other things that people would.
With regard to the format of the data sets that are produced, if the parties during the course of the Rule 26(f) conference cannot agree as to format, the parties shall produce text-searchable image files. However, the parties should produce in native format files that are not easily converted to image format, such as Excel and Access files.
In the first 30 days of discovery, the parties should work with their counsel to create a road map that outlines the manner in which they intend to segregate and preserve the relevant information. To ensure they avoid discovery mistakes, in-house counsel should consider developing a standard road map for outside counsel. Such a road map would provide e-discovery consistency and reduce costs substantially since outside counsel will not have to create such a document from scratch for every litigation. The more forthright the parties are in their efforts to preserve at the outset, the less likely it is any accusations of spoliation will be viewed as having merit.
Given that lawyers are only human and inadvertent production does occur, the new default standard requires the parties confer on an appropriate non-waiver order under Fed R. Evid. 502. Until a waiver is entered, information that is produced, that contains privileged matter or attorney work product shall be returned. In addition, if producing counsel provides notice that such information was inadvertently produced, then, even if it is not obvious that it was produced inadvertently, the information should be returned within 30 days of such notice.
In conclusion, albeit to some lawyers the default standard might appear draconian or counterintuitive given the adversarial structure of our legal system, the focus on forcing lawyers to address e-discovery issues early on should assist in shifting litigation back to being about the issues and not the discovery.
Daniel B. Garrie is a partner at Law & Forensics, an e-discovery and forensics firm, and co-author of “Dispute Resolution and E-Discovery” (2011 Thomson Reuters). Email: firstname.lastname@example.org.