Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present case, the Court concluded that the failure to confer resulted in inadequate searches and, acknowledging Plaintiff’s argument that “[Defendant] alone is responsible for its illogical choices in constructing searches” indicated that, “which searches will be conducted is left to the Court.”

As promised, the Court went on to discuss the three disputed discovery requests and identified specific search terms and custodians to be searched, many of which were proposed by the plaintiff. The Court also instructed the parties to work together to the extent necessary, if the non-responsive documents returned were too voluminous, for example.

The Court ended the opinion by returning to the topic of cooperation:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

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