Monday, March 3, 2008

Inadequate Keyword Searches by Untrained Lawyers May, in Some Circumstances, be Sanctionable

Sherlock HolmesA recent decision in Texas suggests that inadequate keyword searches could lay a predicate for spoliation sanctions when the defective searches cause evidence to be lost. Diabetes Centers of America, Inc. v. Healthpia America, Inc., 2008 U.S. Dist. LEXIS 8362, 2008 WL 336382 (S.D. Tex. Feb. 5, 2008). The plaintiff relied upon an untrained associate attorney to do keyword searches, apparently to decide which emails of a key witness to preserve and produce. Her sleuthing skills were poor and she botched the job. As a result numerous relevant emails were lost, emails that defendants claimed would have helped their defense.

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