The short answer is for the most part, no, the message has not been heard. Search terms continue to be simply thrown against the wall in many cases without much thought, planning or validation.
It has been more than a year since the William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009), opinion out of the Southern District of NY. In that opinion, the court provided specific direction on the formulation of search terms. As this court notes Specifically:
"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."
So why are the court's suggestions not being followed? In my view, its education. The ESI service provider industry must take and carry the educational flag. Attorneys are trained to practice law not develop repeatable and defensible processes. We as the "experts" in this area must get aggressive and help educate and guide. For more on this topic, see the "Post Process" blog.
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