There is a growing body of case law regarding search technology and search terms that makes it imperative for attorneys to be aware of the implications of a poorly executed document strategy. In order to meet the mandates of new rules and court rulings, lawyers need to become well versed in search term construction and the potential roles of linguistics, statistics and computer science in devising an effective search and review.
In recent years, the Courts (both federal and state) have begun to question the validity of key word searches being presented to define case strategy, and in addition, questioning the ability of lawyers to craft those searches without outside advice. One of the major areas of fallout has been courts refusing to order the return of inadvertently-produced privileged documents when proper search protocol was not used by the producing party. This type of production can change the direction of your case and leave you having unpleasant conversations with both your insurance carrier and your client. This is not a temporary fad that is going away, search strategy is a major component of your ongoing EDiscovery practice and you should make sure to take advantage of the knowledge available in the marketplace to best represent your clients.
While it is not possible to provide complete answers in a blog about search term technology, the goal here is to highlight some of the key areas and ask some of the important questions that should be considered by attorneys in order to become educated about the issues. My advice is to find and attend a CLE course that deals with keyword searching that provides practical information and insist that your entire team participate. Any useful course should cover current key search cases and the implications for privilege review, new methods (technology) for improving search and help assure that privileged documents are not inadvertently produced and perhaps most importantly, how to make sure that your EDiscovery protocol is legally defensible.
If you do not have the experience to answer all these questions confidently, then you may need to involve some experts to protect your client’s material. These are some of the areas that need to be considered while putting together a defensible strategy that will pass a judicial review and ultimately be favorable to your client:
• Are lawyers qualified to develop and run their own search methodologies or should this be left to experts? Look at some of the recent court rulings such as O’Keefe, Victor Stanley and Hawley Insurance to understand the current legal landscape.
• Should you cooperate with opposing counsel in formulating and executing search terms? The FRCP, and particular the rules surrounding Meet and Confer, provide some excellent guidelines on the level of cooperation that the courts expect in today’s litigation.
• Is your Search Protocol Defensible? Ensure that inadvertently produced privileged documents will be returned and not used in the case pursuant to FRE 502 and “clawback agreements.”
• What additional value can Search Experts bring to your team? Search experts can offer search techniques to help find privileged documents and improve the search strategy and offer advanced analytical techniques to help manage large document populations, including defensible sampling.
• What role do linguistics, statistics and computer science play in effective search technology? Judges are beginning to talk about the need to involve specialists in these areas to properly execute an EDiscovery strategy that is defensible, cost-effective and accurate. The complexity of today’s EDiscovery tools to help reduce the size of responsive document populations requires more than just an answer that scales to handle a large population; it must do so with a scientific basis.
Does this mean organizations need to hire full-time linguists, statisticians and a cadre of other experts who practice information retrieval for a living? Not necessarily, but those experts should be consulted when necessary. Judges themselves are currently mixed on the requirement to include them as part of the process. Although Judge Facciola may be of the opinion that information retrieval experts are necessary, Judge Grimm suggests that lawyers may be qualified to design search protocols if they can demonstrate that they employed appropriate quality assurance and measurement, for example, by statistically sampling their search results using defensible science.
At a minimum, selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. If you have the expertise to perform this work in house, proceed. If not, consider an education or consulting relationship before you proceed.
Comments