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Negotiating keyword deals: "just filters" or more?

What counsel needs to know

In his June 4 column in Law Technology News entitled “Are Keywords Just Filters?“, Craig Ball considers the expectations of counsel when agreed upon keywords are used to search a document population for responsive information; will everything hit by the keywords be turned over, or are keywords just a means by which the producing party culls a population for further review? He cautions counsel to be clear in any agreement reached with a counterparty.

In determining whether to agree that keywords are a filter prefatory to review or a proxy for review, the compelling analysis should be of the capability of the keywords. Depending on the method and expertise used in their design, simple keywords may broadly overcapture documents or may miss most of the information sought.  Properly tailored to relevant context, keywords can become effective search terms that identify relevant content while significantly reducing both under- and overcapture.

What is most efficacious in a particular case will depend upon the client’s sensitivities. Where time or cost is a tactical factor but overproduction is of minimal concern (such as for many HSR second requests), it may be sensible to use keywords as a proxy for relevance; the client saves time and money by producing anything hit by the keywords. Where the goal is to reduce the risk of challenge by using agreed terms to locate potentially relevant documents, but the client is reluctant for nonresponsive information to be disclosed (as when trade secrets must be protected or a litigious opponent may go fishing for other claims), the keywords should only be the beginning. Well designed, tested, and refined search terms or the more expensive manual review should follow.

Increasingly, there is an ethical onus on counsel to understand how likely it is, given the nature of the matter and the effort and expertise put into the design, that the search will achieve its intended goal. Counsel should beware of stepping too close to that place where “angels fear to tread”*; the quality of a keyword search is proportional to the subject matter and linguistic expertise that is applied in its development. While clarity of agreement is desirable, as Ball espouses, understanding the capabilities of the intended search and the outcomes the search is likely to achieve must come first.  Appropriate design and testing – which can be inexpensive and quick if done correctly – will put counsel in the position to negotiate appropriately for the client.

* See U.S. v. O’Keefe ( D.D.C. Feb. 18, 2008)(“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.”).=

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