Khanh T. Huynh


The 2006 Amendments to the Federal Rules of Civil Procedure are the first codified references in the FRCP to electronic discovery. However, the lack of comprehensive rules in this area provides opportunities for attorneys to leverage search terms as a weapon, primarily to wear out opponents financially. Disagreement on search terms used to produce documents can prolong litigation. Complicated Boolearn search tems can be difficult to run. Other search methods, such as natural language search, cannot provide efficient and accurate results. The cost to run complicated searches is high, and the lack of rules addressing search terms in the FRCP leaves parties at risk of sanctions. In addition, since electronic information may be extracted from third parties' servers, disagreement on search terms may lead to opponents using data extracted from third parties' as evidence of a failure to produce, and seeking sanctions. The low efficacy of search methods currently used also poses a risk of under-producing to attorneys. This article proposes two amendments to FRCP 26. First, FRCP 26 should mandate an agreement on search methodology and storage spaces to be searched. Second, FRCP 26 should allow electronic discovery production certification as complete and accurate using the agreed upon search method in agreed upon storage spaces.



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