Can These Plaintiffs Put the Keyword Horse Out to Pasture?

http://ow.ly/9CImC

An article by Jon Resnick, Esq. posted on the applieddiscovery.com website.

This article discusses the case of Kleen Products LLC v. Packaging Corp. of America, in which the plaintiffs have objected to the defendant's use of keyword searching, and want the court to compel a content based advanced analytics workflow.

The article states, "The defendants contended that the plaintiffs "provided no legitimate reason that this Court should deviate here from reliable, recognized, and established discovery practices" in favor of their "unproven" CBAA methods. Furthermore, the defendants asserted that they have "tested, independently validated, and implemented a search term methodology that is wholly consistent with the case law around the nation and that more than satisfies the ESI production guidelines endorsed by the Seventh Circuit and the Sedona Conference." According to the defendants' briefing, they produced more than one million pages of documents using their search methods during discovery. Thus, they expressed outrage that the plaintiffs would ask the court to "establish a new and radically different ESI standard for cases in this District."
The defendants cited a publication by The Sedona Conference from 2007, "Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery," which quoted a 2004 federal district court opinion, saying "by far the most commonly used search methodology today is the use of 'keyword searches.'""

In addition, the article goes on to further state, "Fortunately for the plaintiffs, U.S. Magistrate Judge Andrew Peck’s opinion in Da Silva Moore v. Publicis Groupe came at the right time. Judge Peck's opinion is in harmony with the plaintiffs' proposition that computer-assisted review is superior to the alternatives. The plaintiffs went so far as to analogize the defendants' election of keyword searching to "choosing a horse as a mode of transportation . . . because it is the best available horse, even though technology has evolved and a superior form of transportation—the automobile—is now available."
Even so, the defendants may still carry the day. They rightly claimed that the plaintiffs "fail to show that the sophisticated search protocol used by Defendants is inadequate or that CBAA . . . is the only permissible means of searching electronic documents for potential production in this case." According to the defendants, the plaintiffs want the court "to support the unprecedented conclusion that search terms per se are an unacceptable methodology for locating potentially responsive ESI." Judge Peck's opinion even acknowledged that though keyword searches "are not overly useful," they can be when "well done and tested," and particularly so when added to predictive tagging and other methodology."

P.S. This opinion will be one to watch as it could lead to additional objections to the use of keyword searching, depending on the court's ruling.