Canada: Custodian Self-Collection And Employee-Based Searching – Evaluating Adequacy

Can employees be trusted to search their own records in response to an e discovery request? What documentation is required to demonstrate "search accuracy" in self-collection? What if the custodians get it "wrong"?

These are some of the questions addressed in the Opinion and Order filed July 13, 2012 in National Day Laborer Organizing Network v. The United States Immigration and Customs Enforcement Agency in the United States District Court, Southern District of New York. The matter concerns a 21-page request under the Freedom of Information Act for information from a variety of federal agencies and departments about the Secure Communities, an aspect of National Immigration Policy.

In response to the plaintiffs' request, the defendants claimed that they have spent "thousands of hours and hundreds of thousands of dollars." The adequacy of those searches was the subject of the latest cross-motion in this case.

Although the decision is highly fact-specific, it nevertheless contains a summary of U.S. case law on the adequacy of self-collection and employee-based searching for electronic documents in response to information requests.

In determining whether the searches were reasonable, Judge Shira Scheindlin considered whether:

  • the defendants' decision to exclude certain custodians was reasonable
  • the locations, places and systems searched were reasonable
  • a search of any former employees' systems was required
  • the search terms were adequate and reasonably tested
  • the precise instructions given by custodians to their computers were reasonable
  • the search terms as combined and deployed were reasonable
  • the description of the search terms and search methodology were adequate

Search Documentation – Search Methodology and Search Term Description

The judge observed that to determine the adequacy of a custodian's self-collection, the court must understand how the custodians developed and implemented searches, because the custodians "never actually look at the universe of documents and rely on search terms" to produce a subset of potentially responsive records that are then examined for responsiveness. Additionally, "[i]n order to determine adequacy, it is not enough to know the search terms. The method in which they are combined and deployed is essential to the inquiry" to understand whether the searches are reasonable.

According to the judge, custodians must provide a description of the searches because the Act places a burden on the searching party to establish the adequacy of searches. This can be accomplished by having the searching party record and report on the search terms used, how these were combined, and whether the searches searched the full text of documents. The judge also noted that most custodians cannot be trusted to run effective searches because designing legally sufficient electronic searches is not part of the custodian's daily responsibilities. She distinguished searching for an answer on Google as being very different from searching for an "all responsive documents" in an e-discovery context.

The judge cited evidence that "key word searching is not nearly as effective at identifying relevant information as many lawyers would like to believe." She cited previous decisions which speak to "a need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or 'key words' to be used to produce e mails or other electronically stored information."

Court Evaluation

If custodians do keep track of and report on the search terms they have used, how should a court evaluate their adequacy? The judge acknowledged her inability to do so in this case but referred to the plaintiffs' search expert's evaluation of the inadequacy of search terms.

As the court could not provide the parties with specific guidance on the adequacy of searches, it directed the parties to meet and confer and devise a mutually agreeable scheme to supplement the material already provided by the defendants under the information request. She also suggested that the parties examine emerging technologies, including computer assisted or predictive coding technologies in order to complete the remainder of the searches under the request.

Our Experience

In our experience, most custodians cannot be left to conduct searches without the involvement of attorneys or other qualified personnel experienced in e discovery initiatives. We note moreover that the cost of re-doing a search is more frequently larger than the cost of correctly identifying potentially responsive documents at the outset of the e discovery request.

Search is challenging because the adequacy of a search can depend entirely on context and available IT technologies and the characteristics of the information being searched. Employees frequently do not have enough information to evaluate the context of requested searches.

Furthermore, the search opportunities that may be done initially within a company's information systems may not be the same and may be inferior to searches done following a collection of potentially responsive documents and their transfer to a system specifically designed to assist in the identification and review of potentially responsive documents.

Our own experience suggests that companies that actively engage counsel and e discovery expertise at the earliest stage following a request for information will save costs and reduce the production and response burden when responding to e-discovery requests.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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