Ride the Lightning

Disclosure of Search Terms Does Not Compromise the Work Product Privilege

December 18, 2013

I love it when my friend Craig Ball gets worked up about something. On Monday, he was energized by an article in the New York Law Journal which suggested that search terms in e-discovery are protected by the work product privilege. The resulting energized post is well worth reading.

Personally, we have seen search terms protected as work product just once, years ago, by a magistrate judge who clearly knew very little about e-discovery. But we continue to see lawyers and judges talk about this issue as though the matter had not been pretty much settled.

There may be rare instances when the privilege might apply, as you will note in a comment to Craig's post. But ordinarily, transparency will be required by the court, as well it should be. How else can the other side know whether potentially responsive material has been excluded by the terms? It is precisely in search terms that one so often finds that "hide the ball" tactics are being employed.

As Craig notes "Disclosure of mechanical filters doesn't compromise counsel's mental impressions, conclusions, opinions or legal theories." It would only be in the rarest of scenarios that a compromise might exist – and in the real world, we have never seen such a scenario.

While I wish we could put this issue to bed, I have no doubt that we will continue to hear this nonsensical argument made again – and again – and again.

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