“This Opinion should serve as a wake-up call to the Bar in this District. . . ” When an opinion begins like that, continuing to read it is like watching a horror movie. The payoff is that shiver of relief that comes from knowing that you are only a spectator.
Magistrate Judge Andrew Peck was not happy with anyone in William J. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company.” He was not happy because, according to the opinion, the lawyers representing the parties (and one non-party involved in discovery) failed to cooperate in the creation of key terms to search an email database, leaving him to do their work.
The dispute involved alleged defects in the construction of the Bronx County Hall of Justice. The owner of that project agreed to produce documents from its construction manager (Hill), including project-related emails. As Judge Peck relates it, the project owner proposed several search terms. The other parties requested the use of thousands of additional terms, including: “sidewalk,” “driveway,” “build,” “elevator,” and “electrical.” The project owner noted that would require to the production of Hill’s entire email database since Hill was, after all, a construction manager. Hill’s counsel attempted to play Solomon, allowing that the project owner’s search terms may have been too narrow, but arguing that the other parties’ requests were certainly too broad. It proposed no search terms of its own.
Judge Peck, said the parties “left the Court in an uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill.)” Having found himself in that position his unhappiness was understandable. The judge characterized the case as “just the latest example of lawyers designing keyword searches in the dark, by the seat of their pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.”
Judge Peck discussed similar prior cases and the solutions those courts offered. He ended his discussion with this admonition: “the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Cooperation Proclamation.”
That proclamation, issued toward the end of last year, does a masterful job of laying out the case for cooperation and a method for achieving it—and it does so in about three pages. Its conclusion:
It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.
William J. Gross Construction Associates, v. Am. Mfr. Mut. Ins. Co.


