When a court has to decide on the adequacy of a keyword search done in response to a discovery requests, the case law shows that one of several conclusions are likely:
- 1. The parties must better cooperate to develop appropriate and effective searches
- 2. The party completing the keyword search and providing its results must employ an additional validating search mechanism
- 3. A party must engage an expert or present an expert affidavit attesting to the adequacy of the search.
In the first instance, when a party moved for sanctions when the defendant failed to produce the electronic documents that they believed were relevant, the court held that the parties – particularly in complex litigation – needed to cooperate and discuss electronic discovery protocol in detail between themselves. In fact, the court criticized the defendant for not involving the plaintiff in the process, recognizing that ‘keyword searching is a cooperative and informed process’.
In the second instance, when the requesting party complained that the keyword search failed to use certain generic names, acronyms and common or foreign language translations of terms, the court held that a party had to use a quality assurance technique to ‘demonstrate the completeness of the search’.
Finally, in the third instance, several courts went so far as to hold that parties performing the keyword search are not entitled to a presumption that the search is adequate and must actually use an expert to verify the search’s adequacy.