Pre-Collection Keyword Searches: Where Angels May Fear to Tread but Not Attorneys with the Right eDiscovery Software

By John Patzakis

One of the key cases involving the principles of proportionality under Federal Rule of Civil Procedure 26(b)(1), is McMaster v. Kohl’s Dep’t Stores, Inc., (E.D. Mich. July 24, (2020).  McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable date ranges, file types and agreed upon keywords. Such a targeted, automated and proportional collection process can be applied to collect only the data that is responsive to this specific criteria.

However, the main ESI dispute in McMaster was that the attorneys could not agree on a list of search terms and sought a ruling of the courts to decide on which search terms should be used. As noted by the Magistrate Judge in McMaster, “Here is another case in which the Court is called upon to decide whose competing list of search terms is better suited for the search of large amounts of electronically stored information”, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 23–24 (D.D.C. 2008), which stated: “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”  Judge Whalen stated: “I, for one, have no interest in going where angels fear to tread. Therefore, if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, then Plaintiff may renew his motion regarding the search terms and will provide the Court with an expert report substantiating his position.”

The parties had been engaged in a Rule 26(f) exercise, which requires the parties’ counsel to “meet and confer” in advance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI). A very good authority on the Rule 26(f) eDiscovery conference is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by then Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” “the use of key word searches, with an agreement on the words or terms to be searched;” “limitations on the time frame of ESI to be searched;” and “limitations on the fields or document types to be searched.”

Kelly Twigger, one of the best and brightest eDiscovery attorneys in the field in my opinion, commented in a recent webinar that eDiscovery collection capabilities that enable an iterative search and collection process in place would allow her to make more much informed decisions on keyword strategies. Twigger noted that software that provides keyword hits and other analytics on custodian laptops, fileservers and other network and cloud sources prior to collection, would enable her “to be able to define and agree upon the right search terms” with the requesting party. Twigger pointed out that while attorneys and judges rightfully avoid “where angels fear to tread” — agreeing on keywords without any visibility into the data — that concern can be alleviated when the right processes and technology are used.  

And such technology is important, because optimizing the process of developing keyword searches is no easy task. The typical approach of blindly brainstorming a list of terms that may be relevant and running the search on a dataset to be reviewed results in a wide range of inefficiencies. Negotiations over proper usage of search terms may become onerous and contentious. Judges are often tasked with making determinations regarding the aptness of the methodology, and, as we see in McMaster, are very reluctant to do so. Thus, the use of outside expertise and leveraging indexing in place technology is beneficial in building an effective and comprehensive pre-collection search term strategy and enabling you to tread where angels fear to.

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Relativity and X1 Publish Joint Legal Whitepaper on ESI Collection Best Practices

By John Patzakis

Relativity and X1 have published a joint legal whitepaper on the topic of full-disk imaging as a disfavored collection practice in civil litigation, with Relativity eDiscovery attorney David Horrigan as the lead author. The paper delves into all the legal reasons, including detailed analysis of case law, the Federal Rules of Civil Procedure, and the Sedona Principles establishing why forensic collection is not required in civil litigation. The paper primarily focuses on the principles of proportionality in its legal analysis as well as case law issued prior to the 2015 amendment to the Federal Rules of Civil Procedure, which gave greater prominence and clarification of the proportionality rules.


This is an important topic as a key problem in eDiscovery that drives inefficiencies and higher costs is that default collection methods often involve full-disk imaging—a forensic examination of an entire computer—when searching for responsive data. As the whitepaper notes, “it turns out full-disk imaging is not required for most eDiscovery collections. In fact, courts often disfavor the practice.”


A copy of the whitepaper can be found here.

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Industry Experts from Relativity and Insight Optix Discuss Operationalizing Proportionality

By John Patzakis

Industry experts including Relativity eDiscovery attorney David Horrigan, Relativity Product Manager Greg Evans and Insight Optix CEO Mandi Ross addressed utilizing cutting-edge ESI collection processes and technologies to effectuate proportionality in a recent webinar. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. Lawyers that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery. While proportionality is an often-discussed ideal sought by most legal stakeholders, especially corporate counsel, the discussion focused on how to use processes and best practices to operationally attain this goal.

David Horrigan first provided a detailed analysis of Rule 26(b)(1), and some key case law applying the proportionality rule, including McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020). Horrigan commented that McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable data ranges, file types and agreed upon keywords. Such a “targeted, automated and proportional” collection process can be applied to collect only the data that is responsive to this specific criteria.

Mandi Ross explained that proportionality is getting a further boost as George Washington University Law School is sponsoring the development of an important proportionality benefit-and-burden model that provides a practical structure for assessing claims of proportionality. The model features a heat map mechanism to identify relevant custodians and data sources to enable a more objective application of proportionality, thereby facilitating negotiations and better informing the bench. Mandi is key leader of a team of industry legal and technology exports drafting the GW Law model.

Mandi then outlined her typical workflow applying the aforementioned proportionality heat map in an iterative manner to identify key custodians, data sources, and the potentially relevant data itself. To effectuate this, Mandi noted that “X1 Distributed Discovery and Relativity Collect gives us the ability to understand the story the data tells, using (X1’s) index in-place and also allows us to optimize and target our collection efforts.”

To illustrate Mandi’s point, the webinar then featured a live demonstration showing X1 quickly collecting data across custodians from their laptops, fileservers or other network sources, and seamlessly importing that data into RelativityOne in minutes. Relativity Product Manager Greg Evans outlined how the Relativity/X1 integration streamlines eDiscovery processes by collapsing the many hand-offs built into current EDRM workflows to provide greater speed and defensibility. Evans also said that new normal of web-enabled collections of remote custodians and data sources was a major driver for the Relativity/X1 alliance, as “remote collections now represent 90 percent of all eDiscovery collections happening right now.”

The live demonstration performed by Greg Evans highlighted in real time how the integration improves the enterprise eDiscovery collection and ECA process by enabling a targeted, automated and proportional search and collection process, with immediate pre-collection visibility into custodial data. X1 Distributed Discovery enhances the eDiscovery workflow with integrated culling and deduplication, thereby eliminating the need for expensive and cumbersome electronically stored information (ESI) processing tools. That way, the ESI can be populated straight into Relativity from an X1 collection.

A recording of the webinar on proportionality can be accessed here.

And a link directly to the demo featuring the X1 and Relativity integration can be accessed here.

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On TAP: Targeted, Automated, and Proportional Collection for Modern e-Discovery

By John Patzakis

Proportionality is now the hottest legal issue in the area of eDiscovery, with the largest number of eDiscovery-related cases in the past year addressing the subject. eDiscovery attorney Kelly Twigger leads a team who produced an excellent analysis of 2020 case law, noting “a big jump to 889 in 2020” of cases addressing proportionality, “which represented nearly a third (31%) of all (eDiscovery) case law decisions last year.” The report notes that “[p]roportionality arguments have become a weapon in arguing scope of discovery and the sharp rise in disputes has illustrated the need for more systematic and standardized approaches to assessing proportionality in cases today.” 

Proportionality-based eDiscovery is a goal that all judges and corporate attorneys want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. Lawyers that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery.

Proportionality is getting a further boost as George Washington University Law School is developing an important proportionality benefit-and-burden model that provides a practical structure for assessing claims of proportionality. The model features a heat map mechanism to identify relevant custodians and data sources to enable a more objective application of proportionality, thereby facilitating negotiations and better informing the bench.

The GW Law model is much needed, as while there is keen awareness of proportionality in the legal community, attaining the benefits requires the ability to operationalize workflows as far upstream in the eDiscovery process as possible. For instance, when you’re engaging in data over-collection, which in turn runs up of a lot of human time and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis, as much of the discovery costs have already been incurred at that point. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right operational processes in place, you’re losing out on the ability to attain the benefits of proportionality.

An example of a process that effectively applies proportionality on an operational basis would be an iterative exercise to identify relevant custodians, their data sources, applicable data ranges, file types and agreed upon keywords, following the process outlined in  McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020), and collect only the data that is responsive to this specific criteria. The latest enterprise collection tech from Relativity and X1 enable such detailed and proportional criteria to be applied in-place, at the point of collection. This reduces the data volume funnel by as much as 98 percent from over-collection models, yet with increased transparency and compliance. In other words, a collection process that targeted, automated and proportional, instead of one that is overbroad and manual.

To learn more about these concepts, please tune in on April 13, where attorney David Horrigan of Relativity and Mandi Ross of Prism Litigation Technology will be leading a webinar to discuss the legal and operational considerations and benefits of proportionality. The webinar will also feature a live exercise performing a pre-collection proportionality analysis on remote employee data. You can register here.

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Filed under Best Practices, Case Law, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, law firm, Preservation & Collection, proportionality