Parties conduct electronic discovery often by using search terms or keywords to locate relevant information during litigation. With the advent of electronic discovery, courts must now answer the question of whether the search terms used in performing that electronic discovery are discoverable as well. Relatedly, should such terms be considered work-product, and thus not subject to discovery? Though as of yet there is no definitive answer from our courts, valid arguments can be made for treating search terms as work product, as well as for treating them as relevant, non-privileged information that should be produced.
Search terms may certainly be “relevant to any party’s claim or defense” pursuant to Federal Rule of Civil Procedure 26(b)(1). Under this rubric alone, it would appear search terms should be discoverable, because they indicate which individuals and events are considered important to any particular facet of a claim or defense. However, are they “prepared in anticipation of litigation or for trial by or for another party or its representative”? If they were, then according to FRCP 26(b)(3)(A), this would render them protected from discovery.
Is it how the search terms are being used that makes the difference? For instance, search terms may be used by counsel to conduct further factual investigation, to determine whether the use of certain terms would retrieve a set of documents that is too broad or too narrow, or to establish which documents may contain privileged information. These uses of search terms create a much stronger argument for work-product protection than situations in which terms are being used solely to cull information ordered for production.
In Romero v. Allstate Ins. Co., the Eastern District of Pennsylvania found that the search terms involved did not fall under the protection of the work-product doctrine, stating instead that the terms related to facts and that “[p]rotection of the privilege extends only to communications and not to facts.” 271 F.R.D. 96, 109-10 (E.D. Pa. 2010)(citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)). The court stated that the search terms related to the “underlying facts of what documents [were] responsive to [the plaintiff’s] document requests and [did] not delve into the thought processes of [the defendant’s] counsel.” Id. at 110.
The Northern District of California also recently rejected one plaintiff’s argument that the disclosure of search terms would reveal privileged information. FormFactor, Inc. v. Micro-Probe Inc., Case No. C-10-03095 PJH (JCS), 2012 U.S. Dist. LEXIS 62233 (N.D. Cal. May 3, 2012). In so doing, the FormFactor court reasoned that the terms at issue were relevant to the “underlying facts of what documents [were] responsive to [the defendants’] document request, rather than the thought processes of [the plaintiff’s] counsel.” Id. at *19-20 n.4. The court cited Doe v. District of Columbia for the proposition that Rule 26(b)(1) “can be read to allow for discovery of document production policies and procedures and such information is not protected under the work product doctrine or attorney-client privilege.” Id. (citing 230 F.R.D. 47, 55-56 (D.D.C. 2005)).
The same district court’s other recent decision in Apple Inc. v. Samsung Electronics Co., LTD. is even more indicative of its hesitancy to protect search terms from disclosure. Case No. 12-CV-0630-LHK (PSG), 2013 U.S. Dist. LEXIS 67085 (N.D. Cal. May 9, 2013). The magistrate judge ordered Google, a third-party to the litigation, to produce the search terms it used in responding to Apple’s request for production. The court cited traditional principles of transparency and collaboration in discovery and stated that such tenets apply not only to parties to the litigation, but to non-parties as well, mandating Google’s production of the terms used. Id. at *42-44 (citing DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010)).
These notions of cooperation in the discovery process may perhaps form the basis for other similar decisions. See Romero, 271 F.R.D. at 109-10. Some litigants assert that if search terms are not produced, it is impossible to tell whether an opposing party has satisfied its discovery obligations. In FormFactor, for example, the Northern District of California noted that there was “simply no way to determine whether [the plaintiff] did an adequate search without production of the search terms used.” 2012 U.S. Dist. LEXIS 62233 at *20-21 n.4, see also Smith v. Life Investors Ins. Co. of Am., 2:07-cv-681, 2009 U.S. Dist. LEXIS 58261, at *20 (W.D. Pa. Jul. 9, 2009)(ordering production of search terms despite claim of work-product and citing defendant’s burden to demonstrate its search was reasonable).
On the other hand, it is arguable whether that concern should be sufficient to require the affirmative disclosure of search terms in every case. While it seems that at least some courts will not hesitate to find that search terms are not work-product, perhaps the question of disclosure is one that should be decided on a case by case basis—that is, by a judge who is in the best position to ascertain whether insufficient cooperation with discovery obligations is a risk in a given scenario. At any rate, until more definitive rulings are issued—which may not be far off, as e-discovery matters become increasingly litigated—a case-by-case assessment is likely the best approach. Additionally, parties can streamline the process themselves by stipulating to search terms and keyword searches prior to seeking intervention from the court.