The UK does not have the sheer volume of case law and reported cases realting to e-Discovery as the US does, therefore the few cases that do exist, are looked at in great detail, even if they are not in highest court.
One such case is DigiCel v Cable and Wireless (Case number HC07C01917), which was heard on 23rd October 2008 at the High Court (Chancery Division).
In this case the eletronic discovery process was challenged, and the issue of keyword selection was brought into sharp focus, as is revolved around the dislcosure of data within the Civil Procedure Rules Part 31, and in particular the “Duty of Search” under Part 31.7 of the CPR.
C&W collected hundreds of thousands of documents (including 85 custodian email accounts), then, as would be expected the process of culling, including filtering, de-duplication, and keyword searching was conducted.
The data was then loaded into a review platform and reviewed by the C&W legal team. From this C&W disclosed around 5,000 documents, the entire process, including review and data hosting came to over £2 million.
DigilCel challenged the disclosure with respect to the number and nature of the keywords used. C&W used just 10 keywords however Digicel identified another 19 keywords. To compound the problem, in the eyes of the court, some of the 10 words C&W had a common stem, e.g. “run”, running”, “runs”, the examples in this case where:
“interconnect and interconnection” “liberalise and liberalisation” and “competing, competitor and competition”.
Thus the 10 words were really only 6 stem words.
Based on this challenge and the fact that the DigiCel stated that first keyword searched had not been agreed “as far as possible between parties” the Judge (Mr Justice Morgan) ruled that C&W had ignored the CPR Practice Direction.
Paragraph 2A.5 of the Practice Direction states that:
“It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.”
Keyword selection is very important, and sometimes even if the keywords are agreed they may not be useful.
Example: if lawyers are searching for documents from “Mr Robert Bloggs”, they may use that exact phrase “Robert Bloggs” . But if Robert is known as “Bob” and his email is firstname.lastname@example.org, and his colleagues just refer to him as “Bob” in emails and reports then is can be quickly seen that the keyword selection is poor.
For this reason it is important to use the right keywords and consult on which keywords will work and why. This is best done with by using a proffesional service, indepedant consultancy company.