Prepare yourself for keyword disclosure.

• Position: E-DISCOVERY - Brief article

An emerging trend in the courts has some attorneys increasingly concerned: courts are ordering defendants to disclose the keywords used to produce discovery documents.

Recently, a federal court in Nebraska ordered a defendant to report all the sources--and keywords--it used to perform searches in response to an e-discovery request. The plaintiffs had filed a motion to compel production based on the fact that they had expected to receive more documents than they did. They didn't point to any missing documents or even types of documents they expected to receive; they merely asserted the production of only 25 e-mails was in itself a good reason to order the defendant to produce more information.

The judge didn't buy the argument and denied the motion. The court did, however, order the defendant to disclose the sources and keywords that were used.

This isn't the first instance of a court ordering the disclosure of search keywords. Last year, in a trade-secret theft case, a court in California issued a disclosure order despite defense counsel's contention that it would reveal sensitive...