You don’t have to read too many legal documents to know that lawyers love to use acronyms and abbreviations. Why is it, then, that lawyers sometimes forget about acronyms and abbreviations when constructing keyword searches? If you’re going to search for “Federal Trade Commission,” shouldn’t you also search for “FTC”?

A recent order by a U.S. magistrate judge in the Southern District of California is a reminder of why lawyers should never forget about acronyms and abbreviations in e-discovery. Further, the ruling underscores the importance of thinking about these terms early on in a case.

In this antitrust matter, discovery was fairly far along before the plaintiffs realized something was missing. As the defendants began to produce documents in response to plaintiffs’ discovery requests, the plaintiffs realized that some of the various defendants routinely referred to each other using abbreviations or acronyms. Upon learning this, they filed a motion seeking to compel the defendants to run document searches containing these abbreviations and acronyms.

That might seem to be a reasonable request. But U.S. Magistrate Judge Louisa S. Porter denied the motion. To understand why, we need to go back to the beginning of discovery in this case.

The Perils of Cooperation

Before the defendants responded to plaintiffs’ discovery requests, they notified the plaintiff that they intended to use keyword searches to find relevant documents. They asked the plaintiffs to provide search terms, but the plaintiffs contended they could not do this because they lacked sufficient information at that point to construct meaningful searches. The defendants went ahead and created their own list of search terms, which they then showed to plaintiffs. Upon seeing it, plaintiffs protested that the terms were too restrictive and were unlikely to capture some highly relevant documents. At that point, the two sides sat down and negotiated a list of agreed-upon search terms. The negotiated list included several terms specifically targeted to capturing defendant-to-defendant communications.

With the parties having agreed on search terms, the defendants began to produce documents. From the court’s opinion, it appears that it was through review of those produced documents that plaintiffs discovered the frequent use of abbreviations and acronyms. Thus came plaintiffs’ motion and thus we arrive back at the magistrate-judge’s denial of that motion.

Plaintiffs had ‘Ample Opportunity’

As I began to read the judge’s reasoning, I was sure she was heading towards ruling in the plaintiffs’ favor. She starts out talking about the Sedona principles of cooperation. She talks about the need for keyword searching to be “a cooperative and informed process.” She emphasizes the importance of “a full and transparent discussion among counsel of the search terminology.” All of this had me thinking she was about to chastise the defendants for their collective failure to mention the acronyms and abbreviations.

Instead, it was the plaintiffs who the judge chastised. Her message to them–these are my words, not hers–was this: “You had plenty of chances to ask about abbreviations and acronyms and you should have thought to do so.”

Here is how she put it:

Here, the Court finds Plaintiffs had ample opportunity to obtain discovery regarding abbreviations and acronyms of Defendant companies, and the burden or expense to Defendants in having to comply with Plaintiffs’ request regarding abbreviations and acronyms outweighs its likely benefit. … First, Plaintiffs had two separate opportunities to suggest that Defendants search for abbreviations and acronyms of the Defendant companies; initially, before Defendant’s produced documents; and second, during negotiations between the parties on agreed-upon expanded search terms. In the spirit of the conclusions made at the Sedona Conference, and in light of the transparent discussion among counsel of the search terminology and subsequent agreement on the search method, the Court finds it unreasonable for Defendant to re-search documents they have already searched and produced.

Second, after meeting and conferring with Plaintiffs, and relying on their agreement with Plaintiffs regarding search terms, Defendants have already searched and produced a significant number of documents, thereby incurring significant expenses during this limited discovery period. Further, as articulated by Defendants, the new search terms Plaintiffs have proposed would require some Defendants to review tens of thousands of additional documents that would likely yield only a very small number of additional responsive documents. Therefore, the Court finds a re-search of documents Defendants have already searched and produced is overly burdensome.

Without knowing more about the precise abbreviations and acronyms involved in this case, it’s hard to judge whether this was a fair outcome. But it sure strikes me the wrong way.

In the normal course, search queries should use stemming, fuzzy searching, phonic searching and similar techniques to find similar or related words. But what if a term is off the map, so to speak? What if internal emails regularly referred to the company CEO as “Col.” because he had long ago been an officer in the military? How would the opposing party know, in advance of any discovery, to search for this? No stemming or fuzzy searching would pick that up. On the other hand, if you’re suing General Motors and neglect to search for GM, then you have no one to blame but yourself.

The lesson here, I suppose, is to remember that you don’t know what you don’t know. In the case of acronyms and abbreviations, anticipate and ask–so you don’t find yourself having to C.Y.A. later on.

In Re: National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, MDL No. 2121 (Dec. 19, 2011).