April 30, 2012 Articles

Negotiating Effective Search Terms Will Save Expense Later

Well-crafted search parameters are critical to the speedy resolution of cases and the reduction of litigation costs

by Angela M. Scafuri

Lack of attention to the requirements of electronic discovery is a black hole in which many litigators may find themselves, leading to extra discovery expense and, sometimes, sanctions by the court. How many cases have we seen regarding a party's failure to issue a litigation hold, a seemingly simple task? Or cases detailing the failure of parties to engage in a substantive Rule 26(f) conference, failing to discuss the form and manner of production of electronically stored information (ESI) until the last minute, when discovery requests are actually served?

Similarly, parties routinely fail to give proper attention to search terms for ESI. In a rush to comply with a court-ordered deadline, parties often fail to craft detailed search parameters. When it comes to negotiating search terms, why do parties seem to ignore the critical importance of this not so simple task? Taking the time to craft effective search terms now can save you from a huge headache later. Indeed, the opinion in a recent decision from the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix Inc., No. 03-3677 (DRD), 2011 U.S. Dist. LEXIS 141614, at *1 (D.N.J. Dec. 9, 2011), begins with the following thought: "This case highlights the dangers of carelessness and inattention in e-discovery." Therein lies a cautionary tale on the importance of negotiating effective search parameters.

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