Case Law

Court Orders Cooperation in Keyword Search

New Mexico

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017) In this pay discrimination case, the Court ordered specific keyword searches at the request of Plaintiff, noting that Defendant’s failure to adequately confer before performing the initial searches “resulted in searches that were inadequate to reveal all responsive documents.” Despite Defendant’s production of more than 14,000 pages of documents, Plaintiff indicated concern that the search terms may have been inadequate to produce all potentially responsive documents, while Defendant argued that discovery sought was not proportional to the needs of the case. In its order, the Court declared that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that lawyers should not design 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,” but that the parties in this case need to work together to the extent necessary if the non-responsive documents returned were too voluminous.

Keywords: FRCP 26(c), protective order, proportionality, ESI, cooperation, meet & confer, keyword search, responsive