Protecting search terms as opinion work product: applying the work product doctrine to electronic discovery.

• Author: Grammel, Sean

INTRODUCTION I. ATTORNEYS DEVELOP SEARCH TERMS BY WORKING WITH THE CLIENT TO DECIDE WHAT IS RELEVANT TO THE CASE A. The Purpose and Use of Search Terms B. Search Terms Developed by an Attorney and a Client Reflect the Attorney's Mental Impressions and Conclusions about the Case C. Opinion Work Product Should Not Protect All Search Terms II. THE BEGINNINGS OF THE WORK PRODUCT DOCTRINE IN HICKMAN AND THE FEDERAL RULES OF CIVIL PROCEDURE A. The Beginning of Work Product in Hickman v. Taylor B. The Policies Underlying the Work Product Doctrine C. Work Product Doctrine in the Federal Rules of Civil Procedure III. CURRENT COMMON LAW REGARDING WORK PRODUCT A. Courts Co Further than the Federal Rules B. Courts Have Limited "Discovery on Discovery" in the Context of E-Discovery IV. COURTS SHOULD PROTECT SEARCH TERMS AS OPINION WORK PRODUCT A. Characterizing Search Terms as Fact Work Product Violates the Policies of Work Product Doctrine B. Protecting Search Terms As Opinion Work Product Is Consistent With the Classification of Other Materials 1. The Third Circuit Laid the Foundations for Treating Search Terms as Opinion Work Product in Sporck v. Peil 2. Other Courts Have Picked Up Where Sporck Left Off a. Selection Criteria Merit Opinion Work Product Protection b. Arrangement of Information by Keywords Merits Opinion Work Product Protection c. Permitting Disclosure of Keywords May Prevent Attorneys from Candidly Assessing a Client's Case CONCLUSION INTRODUCTION

Electronic discovery, or e-discovery, has dramatically changed litigation and challenges lawyers on a daily basis. (1) Attorneys must now conduct discovery differently due to the high number and cost of documents being processed. (2) Faced with large universes of electronically stored information (ESI), litigators have turned to search terms, also known as keywords, (3) to conduct discovery efficiently. (4)

The law of e-discovery has developed rapidly, leaving lawyers scrambling to catch up. (5) Judge Lee Rosenthal, a leading thinker in the field, has stated that "[i]t is hard to overstate the importance and the degree of anxiety generated by electronic discovery in the world today. It is not just in the world of big business; it is in the world of organizations[,] generally, large data producers." (6) Costs have skyrocketed due to the enormous volume of data being stored, (7) a trend likely to continue.

Lawyers use search terms (8) to conduct cost-efficient (9) and reasonable (10) discovery. Search terms are applied to a selected group of the client's data in order to preserve, collect, and produce relevant documents. (11) Lawyers develop keywords with clients by working together to figure out who and what will be important to the case. By assessing the case, reviewing documents, and speaking with the client, the attorney develops conclusions about what will be relevant in the case and distills those conclusions into search terms to locate relevant documents. The final product of this process has not been consistently afforded work product protection, (12) counter to the policies of the work product doctrine. In this Comment, I argue that search terms deserve protection from compelled disclosure as opinion work product.

Part I of this Comment gives a brief overview of how attorneys develop search terms, ideally through a process like that outlined by the Sedona Conference's Best Practices. (13) Part II examines the beginnings of the work product doctrine in Hickman v. Taylor, the policies of the doctrine, and the partial codification of the doctrine in the Federal Rules of Civil Procedure. Part III briefly notes how the common law has filled in gaps left by the Federal Rules of Civil Procedure. Finally, Part IV dives into the jurisprudence of search terms as work product and then focuses on how protecting search terms as opinion work product best fulfills the policies of the doctrine.

1. ATTORNEYS DEVELOP SEARCH TERMS BY WORKING WITH THE CLIENT TO DECIDE WHAT IS RELEVANT TO THE CASE

   Lawyers do not automatically know which keywords (14) will be helpful in locating relevant documents. Search terms do not exist separately from litigation, but rather are generated through the attorney's analysis of the case at hand. To develop good search terms, an attorney works closely with the client and makes judgments about what is relevant in the case based on, among other things, review of important documents and interviews with key players. (15) The attorney assesses the case and reviews relevant ESI in a cyclical fashion, continually developing a list of keywords that reflects the lawyer's mental impressions and conclusions about what is relevant to the case.

   1. The Purpose and Use of Search Terms

      Attorneys develop search terms as a litigation tool in order to conduct an efficient discovery process. Keywords help an attorney locate the important documents within a set of ESI in a more cost-effective way than manual review. The best search terms can identify and retrieve relevant (16) documents without also retrieving nonrelevant information.

      Attorneys can use search terms for a variety of reasons, such as to limit the number of documents to review, to identify the most critical documents for early case assessment, or to find potentially privileged information. (17) Lawyers in previous decades used manual review, but technology has created dramatically larger sets of ESI, making human review of each document prohibitively expensive and time consuming. (18) Attorneys do still utilize manual review to analyze individual documents that are retrieved, (19) but automated methods are usually necessary to sort through the enormous amount of ESI. Though many in the e-discovery community have deservedly criticized a key-word-only discovery process, (20) keywords still serve a useful purpose, either alone or, more likely, in conjunction with other search technologies. (21)

      Keywords enable a user to retrieve the documents of interest by searching the set of ESI and finding the selected word or phrase in the document. (22) For example, searching a client's emails for his lawyer's name or email address can pinpoint emails to review for attorney-client privilege more efficiently than manually searching the whole set for the attorney's name and then reviewing for privilege. Search terms enable a lawyer and client to save time and money by focusing on the relevant documents.

      Keyword searches should retrieve as many relevant documents as possible without also retrieving nonrelevant ones. Precision and recall are two ways to measure the effectiveness of search terms in returning the correct documents. "Precision" is the measurement of how many responsive documents were retrieved by a search compared to how many documents were retrieved overall by that same term. (22) High precision indicates that a search term returned many responsive documents and only few nonresponsive ones. (24) For example, a search term returning ninety responsive documents and ten nonresponsive ones would have ninety percent precision. "Recall," on the other hand, is the measurement of how many responsive documents a search term retrieves compared to how many responsive documents there are in the entire set of ESI. (25) A high recall indicates that the search term was effective in retrieving all of the responsive documents in the set of ESI, and that few responsive documents remain to be identified. (26) For example, the search term that identified ninety responsive documents with ninety percent precision may have a small recall. If there are 120 responsive documents in total, the search term has recall of seventy-five percent; but if there are 900 responsive documents, the search term has recall of only ten percent; ninety percent of the responsive documents are not identified by the keyword.

      Attorneys use recall and precision to ensure that search terms are identifying all the relevant documents, and only the relevant documents. Unlike a lawyer using Google or a legal database to find one document, an attorney running search terms on ESI seeks to find all the documents relevant to the claims and defenses. To achieve the goal of efficient discovery with search terms, keywords should have high precision and recall.

   2. Search Terms Developed by an Attorney and a Client Reflect the Attorney's Mental Impressions and Conclusions About the Case

      Attorneys develop search terms through an iterative process of assessing the case and gathering information. Lawyers review documents, interview witnesses or key players, and test search terms in a cyclical manner. Through this process, an attorney creates mental impressions about the case and decides which keywords best distill those impressions to produce relevant documents with high recall and precision. (27) While the use of search terms does not by itself result in a reasonable or effective discovery process, a well thought-out process of creating search terms should "maximize the chances of success." (28) Because this process involves the attorney making a series of conclusions and mental impressions about the case, it merits protection as opinion work product.

      To create good search terms, there should be "substantial human input on the front end." (29) The attorney and client must first consider the client's legal landscape, an initial step "of paramount importance." (30) The attorney should consider the claims or defenses in the case and interview the client to determine how effective search terms may be. Among other things, the attorney and client should discuss "the nature of the lawsuit or investigation, the field of law involved, and the specific causes of action" under which a discovery obligation might arise. (31) Search terms will not work for every case or client. For example, a patent case with highly technical language might benefit from search terms (32) because searching with the technical language as the keywords would retrieve the relevant...