DuPont v Kolon Industries Shines Light on Keyword Search and Spoliation and Ignores Predictive Coding

June 27, 2013

The article on e-discovery 2.0 titled The eDiscovery Trinity: Spoliation Sanctions, Keywords and Predictive Coding explores the three issues most relevant to clients and council. One case cited is Dupont v. Kolon Industries, an intellectual property lawsuit in which Kolon’s complaint was that DuPont’s forensic experts failed to exercise an efficient keyword search, meaning that of the nearly 18,000 hits only about ten percent were relevant. The article explains,

“Kolon then asserted that the “reckless inefficiency” of the search methodology was “fairly attributable to the fact that DuPont ran insipid keywords like ‘other,’ ‘news,’ and ‘mail.’” The court observed how important search terms had become in discovery: “… in the current world of litigation, where so many documents are stored and, hence, produced, electronically, the selection of search terms is an important decision because it, in turn, drives the subsequent document discovery, production and review.”

Ultimately the court favored Dupont, calling their efforts reasonable. The article mentions that although spoliation and keywords were taken into consideration in this particular case, it did not address predictive coding. What would have happened if DuPont had utilized predictive coding is entirely hypothetical, but some do argue that it could have minimized the cost and produced the same group of relevant documents. The article, though an evocative metaphor for eDiscovery, is certainly not the end of the debate.

Chelsea Kerwin, June 27, 2013

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