At first glance, McMaster v. Kohl’s Department Stores, Inc. may seem like a case concerned with the Americans with Disabilities Act. But a closer look at the discovery process in the case reveals much more and serves as a reminder of the importance of search terms when combing through electronically stored information (ESI).
Brought by a plaintiff who alleged wrongful age-based termination by Kohl’s Department Stores, the case involved ESI that included emails and other non-privileged information. As the defendant and plaintiff were engaged in discovery, they failed to agree on the list of ESI search terms that would be used to filter the digital assets involved in the case, and the judge ordered the parties to share the burden of using an expert to agree upon terms admissible for the process.
The case has several implications on discovery that are worth noting and will inform the future of ESI and ediscovery in case law and how clients and firms alike should address it.
Use of Precedent
McMaster is not the first time search terms will be disputed, and it is undoubtedly not the last. In the opinion given by the judge addressing the dispute, he cited the precedent set by the 2008 case United States v. O’Keefe, which argued:
“Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence.”
Fundamental to the opinion given in O’Keefe and repeated in McMaster is just how complex a thorough ediscovery process truly is. The sensitivities of computers and software make it so that the result of inputting a wrong term or phrase would solicit unhelpful results, and only a person fluent in the given software would be able to offer an informed understanding.
The biggest takeaway from this is that it is imperative for plaintiffs, defendants, and their counsel to proactively seek expertise in search terms before it comes to trial because in doing so, the outcome is likely to be more favorable.
Search Terms are the Key to Optimal Results
McMaster also sheds light on why expertise on concrete and comprehensive search terms is critical for parties undergoing the discovery process and why merely signing off on terms that seem correct to a layperson can impede a case.
Without knowing the details of the counsel of either party, the case invites the assumption that neither solicited an expert in ESI search terms and as such, they fell victim to the legal and financial consequences that stem from it. The cost of a mutually agreed upon expert can be high, and the time it takes to resolve the dispute is just another hurdle prolonging the case. Finally, and perhaps most importantly, parties potentially cede the ground of controlling which terms can and cannot be used.
If either the plaintiff or the defendant sought an expert initially, the impediments might not have existed. Experts understand that the ultimate goal of using ESI during the discovery process is to either find the proverbial “needle in a haystack” or string together information to build a case, while at the same time adhering to the Federal Rules of Civil Procedure Central to the Discovery Process, which dictate that discovery cannot be overly burdensome and must be within reason, among other rules.
Ultimately, searches have to be big enough to find important information without falling claim to being fishing expeditions. As such, they are suited to tailor search terms that are appropriate for the specifics and scope of the case that will yield optimal results.
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