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Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

Posted by rjbiii on March 28, 2009

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”

After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.

Lessons learned:

  1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
  2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
  3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
  4. Even an admittedly imperfect protocol, if the above elements are present, may suffice.

Posted in 2nd Circuit, Case Summary, Effectively Managing E-Discovery, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols, The Sedona Conference | Tagged: | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

Posted by rjbiii on March 28, 2009

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Need for cooperation and communication during E-Discovery

Posted by rjbiii on March 28, 2009

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 at *13-14 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Tagged: | Leave a Comment »

Case Blurb: Rhoads Indus.; Keywords and Emails

Posted by rjbiii on December 8, 2008

The advent of electronically stored information (“ESI”) has been widely discussed and has already resulted in amendments to the discovery rules. Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof. For instance, privileged communications frequently creep into e-mail “chains,” but may appear only to some participants in the chain depending on a user’s application of the “reply” and “forward” commands. These issues [invariably] led to at least some of Rhoads’ inadvertent disclosures.

Rhoads Indus. v. Bldg. Materials Corp. of Am., 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008 )

Posted in 3d Circuit, Case Blurbs, E.D. Pa., email, Judge Michael M. Baylson, Key Words, Search Protocols | Leave a Comment »