When two parties failed to confer on keyword search terms, the court stepped in and determined the searches itself, once again highlighting that cooperation is key.

The National Law Review reported on the pay discrimination case of United States v. New Mexico State Univ. The plaintiff, a female employee within a track and field program, alleged that the defendants, the university and board of regents, had paid her less than her male counterparts for similar responsibilities.

The plaintiff’s production requests included documents reflecting communications regarding her compensation, her complaints concerning pay and pay discrimination complaints made by other coaches, trainers, etc.

In response to the defendants’ “more than 20” keyword searches and “more than 14,000 pages of documents,” the plaintiff expressed concern over the adequacy of the search. A disagreement ensued and the defendants’ protective order followed. The National Law Review states:

“Defendants argued that the discovery sought was not proportional to the needs of the case, noting the efforts already undertaken.”

Of course, the plaintiff disagreed. In the court’s ruling, U.S. Magistrate Judge Laura Fashing noted the importance of cooperation in e-discovery and that it can prevent, as The National Law Review highlights, “lawyers designing keyword searches ‘in the dark, by the seat of the pants.’”

The court found that a failure to cooperate resulted in inadequate searches. After reviewing the three disputed discovery requests, the judge determined the keyword search terms as well as the custodians.

As The National Law Review points out, the judge took the time to emphasize in her ruling the importance of cooperation in e-discovery by quoting Judge Andrew Peck from a 2009 order.

“It is time that the Bar — even those lawyers who did not come of age in the computer era —understand this.”

In that same order, Judge Peck strongly endorsed The Sedona Conference Cooperation Proclamation.