There’s a double standard in e-discovery. Keyword search is deemed “good enough” for identifying responsive electronically stored information; yet when privilege is on the line, lawyers insist on page-by-page review. It’s a tacit recognition that keyword search is a blunt instrument — a point artfully made twice this year by Magistrate Judge John Facciola in U.S. v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008), and Equity Analytics v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008), and emphatically underscored by Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., Civil Action No. MJG-06-2662 (D. Md. May 29, 2008).
It’s assumed that lawyers are qualified to review documents for relevance, responsiveness and privileged character. But are we qualified to craft proxies for our judgment in the form of keyword searches? In Victor Stanley, 165 documents slipped by a privilege review employing keyword search and a cursory-sounding “title page” analysis for nonsearchable items. Defendants had unwisely abandoned efforts to secure a clawback agreement (a nonwaiver agreement providing that inadvertantly produced priviledged materials may not be used).
