The use of search terms to separate irrelevant or unresponsive data from relevant or responsive information is commonplace. It is also common for parties to decide voluntarily to exchange search terms to increase transparency, ensure that documents are not excluded and limit the cost of discovery. See, e.g., “The Sedona Conference Cooperation Proclamation,” 10 SEDCJ 331 (2009) (calling for “cooperative, collaborative, [and] transparent discovery”).
However, what should not become commonplace (and, sadly, is starting to) is the forced disclosure of search terms by courts. Not only are search terms not within the bounds of discovery, but they are windows into how counsel are considering and evaluating their case.
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