How about a game of ‘Go Fish’?
I fully admit I know relatively nothing about the Legal Industry. But I am interested in anything to do with search. Hang in here with me as the post is quite long.
There is an interesting legal case, Nat’l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency that questions the adequacy of the government’s search for information responsive to the plaintiffs’ substantial FOIA request. This case addresses plaintiffs’ request for information pursuant to the federal Freedom of Information Act (FOIA) and their assertions that defendants’ searches for such information were inadequate.
What the gist of the case is about, is that the court determined that each agency proceeded differently in its search efforts, ranging from providing custodians with mandatory search terms which they were later confirmed to have used (a search practice that notably was not challenged by the plaintiffs) to providing no search terms, mandatory or otherwise. In the latter case, where the FBI produced nothing to indicate that its internal search memorandum provided custodians with search terms or any instruction or guidance regarding how the search should be conducted, the FOIA officer instead explained that “each employee conducted a manual review of his or her records.” It was further explained that “‘The FBI largely did not rely on search terms, but instead relied on the knowledge of its custodians’ who ‘sifted through and reviewed tens of thousands of pages of records.”
In their affidavits, agencies must “identify the searched files and describe at least generally the structure of the agency’s file system’ which renders any further search unlikely to disclose additional relevant information.” They must establish that they searched all custodians who were reasonably likely to possess responsive documents. And they must “set forth the search terms and the type of search performed.”
The court then turned to defendants’ argument that their searches should be deemed adequate, despite the court’s lack of information regarding search terms, “let alone Boolean operators, search fields, and time frames” and also addressed the argument that “it was also unclear why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis.” The court first reasoned that “custodians cannot ‘be trusted to run effective searches,’ without providing a detailed description of those searches, because FOIA places a burden on defendants to establish that they have conducted adequate searches” which must be done by providing more than “merely conclusory statements,” including what terms were used, how they were combined, and whether they were run against the full text of documents.
The second answer to defendants’ question has emerged from scholarship and case law only in recent years: most custodians cannot be “trusted” to run effective searches because designing legally sufficient electronic searches in the discovery or FOIA contexts is not part of their daily responsibilities. As Judge Andrew Peck—one of this Court’s experts in e-discovery—recently put it: “In too many cases, however, the way lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish’ … keyword searches usually are not very effective.”
Although eDiscovery and FOIA requests require highly accurate search results, it is no different in the ‘real world’ where end users are making decisions on only data they can find, not necessarily the most relevant. In these scenarios, it can be a serious risk to the organization.
How important is accurate search in your organization?