Wake Up Call for New York Lawyers!

A new case out of Manhattan makes clear with the following words that all lawyers in New York who do discovery had better improve their game: 

"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." 

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009). Download GROSS CONSTRUCTION-EDisc The opinion cites to Judges Grimm and Facciolla and their prior decisions on the need for expertise in search. This is a welcome message to attorneys like me who make their living studying and inventing ESI search methodologies. The efforts of the lawyers in this case were laughable, and once again show the need for both search expertise and cooperation.  Read on for the excellent concluding paragraph by Judge Andrew Peck:

"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."

Comments

[Joshua Kubicki]

Yet another great illustration of the case for more cooperation. As Sedona has discussed in its Cooperation Proclamation. See http://www.thesedonaconference.org/content/tsc_cooperation_proclamation/proclamation.pdf