I’m rarely moved to criticize the work of other commentators because, even when I don’t share their views, I applaud the airing of the issues their efforts bring. But sometimes a proposition is just so blatantly ill-advised, so prone to unfairly tilt the litigation playing field, that any reader and every writer should stop and say, “Wait a second….” One such article, currently running in the New York Law Journal and called No Disclosure: Why Search Terms Are Worthy of Court’s Protection, charges that judges who require disclosure of search terms “discount or misunderstand” what the authors term the “protected nature of key aspects of the e-discovery process,” namely filtering of data by use of search terms. The authors think that disclosure of search terms used to exclude data from disclosure compromises the work product privilege and argue that judges should “recognize that a search term is more than a collection of words, rather, the culmination of an attorney’s interaction with the facts of the case.”
Espousing the sanctity of work product privilege to an audience of litigators is like saying, “I support our troops.” It’s mom, baseball and apple pie. It’s also popular to paint judges as addled abusers of discretion. But let’s not let jingoism displace judgment. Search terms are precisely what the authors claim they are not: search terms are a collection of words. They are lexical filters. Nothing more.
Search terms deserve no more protection from disclosure than date ranges, file types and other mechanical means employed to exclude data from scrutiny. Search terms strip out information that will never see the light of day nor benefit from the application of lawyer judgment as to their relevance. In that sense, search terms are anathema to the core principles of work product and warrant more, not less, scrutiny.
The authors of the article point to FRCP Rule 26(b)(3) and its language that courts “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” True, but the authors elide over the other salient points of the Rule, including the requirement that parties seeking to resist disclosure must expressly make the claim AND furnish information about the information sought to be protected that “will enable other parties to assess the claim.” You can’t just claim something is work product. You’ve got to prove it. The authors also fail to address the provision in the Rule that requires disclosure if the information sought is otherwise discoverable or the party seeking discovery “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”
By what other means might a requesting party secure the substantial equivalent of search terms used to exclude potentially responsive material—again, excluding same sight unseen—save by getting them through discovery?
But the overarching reason why the work product argument fails is because it’s based on a false premise. Disclosure of mechanical filters doesn’t compromise counsel’s mental impressions, conclusions, opinions, or legal theories. No one suggests that the searches a lawyer runs to test theories and form mental impressions are per se discoverable. How a lawyer serves to inform his or her own assessment of the case may be protected. But that’s a different kettle of fish from the use of search terms to objectively filter collections for review and production, and we should be careful not conflate the two because they involve similar techniques.
Any student of e-discovery understands that segregation of potentially relevant documents by use of keyword search is a practice fraught with failure. Language is nuanced, and meaning subtle. Fashioning lexical queries that perform well, i.e., that produce estimable precision and recall, is not a task lawyers are trained to undertake or one to which lawyers bring special expertise. Sorry to burst that bubble. In fact, the process by which lawyers typically arrive at search terms in litigation would be pretty funny if it weren’t so pitiful: lawyers mostly guess. Call it “judgment,” if you wish; but, mostly it’s a wild ass guess.
Good lawyers go much further, of course. They test those guesses against representative samples of potentially responsive data, they look closely at the results, winnow away false positives and tweak queries until they are demonstrably more effective and efficient. This is where judgment may come into play, and it’s the part of the process that may deserve limited work product protection. But, the terms that emerge—the terms actually run to mechanically segregate information items–are not worthy of courts’ protection.
Because if integrity of process means anything in e-discovery, it means that opponents should be able to understand, test and challenge error-prone mechanisms pushing potentially responsive information beyond the reach of attorney scrutiny. The reasons why a party selected particular search terms may not be discoverable; but, the terms used should be freely discoverable absent good cause shown. If search terms are not routinely disclosed, then much of the waste, abuse and failure of e-discovery will continue unchallenged, safely ensconced beneath the misapplied mantle of work product protection.
Let’s be honest: Parties don’t seek to conceal search terms because they reveal what their lawyers think. They seek to hide search terms because they’d rather opponents not see how thoughtless they were.