An emerging trend in the courts has some attorneys increasingly concerned: courts are ordering defendants to disclose the keywords used to produce discovery documents.
In September, a federal court in Nebraska ordered the defendant in American Home Assurance Company, et al v. Greater Omaha Packing Company, Inc. to report all the sources — and keywords — it used to perform searches in response to an e-discovery request. According to attorney and e-discovery expert Ralph Losey in his e-Discovery team blog, the plaintiff had filed a motion to compel production based on the fact that it had expected to receive more documents than it did. The company didn’t point to any missing documents or even types of documents it expected to receive – only that the production of just 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. It did, however, order the defendant to disclose the sources and keywords it used.
This isn’t the first instance of a court ordering the disclosure of search keywords. In an earlier e-Discovery team blog posting, Losey pointed to Formfactor, Inc. v. Micro-Probe, Inc., a trade-secret theft case in which a California court issued a disclosure order despite defense counsel’s contention that it would reveal sensitive trade secrets. The court again didn’t buy into the argument. Thus, the trend seems to be that the plaintiff need only request the disclosure; a compelling reason is not required. Some trial lawyers contend that this erodes the attorney-client privilege regarding work product.
In the earlier blog posting, Losey wrote, “[M]any lawyers have long considered the particular methods they used to find documents that are responsive to a request for production to be obvious work product. It was, after all, their own thought processes and legal techniques. If they used keywords to find the relevant documents, then they should not have to disclose what words they used. They argued that it would unfairly require them to disclose their theory of the case, their mental impressions of how to find relevant information.”