Keyword Searches: A Grim Prognosis
"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).
Plaintiffs counsel spotted the documents and dutifully reported their potentially privileged character, but argued defendants waived privilege by using a faulty review process. The court agreed, pointing to defendants' failure to provide information regarding keywords used, how they were selected, steps taken to assess the reliability of the outcome and the qualifications of the attorneys to design an effective and reliable search.
Thus another jurist dismisses the legal profession's ability to search ESI without demonstrated expertise. It's enough to give Perry Mason an inferiority complex!"
