Electronic Discovery Navigator

Enterprise Search: Rely On Strategy, Not Keywords

Enterprise Search: Rely On Strategy, Not Keywords

"Enterprise search is all about the ability to find an organization’s electronic information wherever, or however, it may be stored. Much as an Internet search tool is designed to search the World Wide Web for relevant websites, enterprise search is intended to give a company’s employees the ability to recall key information from internal documents, emails, databases, and more. Sounds simple, right?  Unfortunately, enterprise search is anything but simple.

“Many organizations have attempted to provide enterprise search by relying on a federated search infrastructure,” says Alex Marshall, VP of technology for Autonomy Corporation. A federated search system is intended to enable users to search varied and numerous databases with one query. It is also intended to display the results of the search neatly packaged in order of relevance. While users dream of such a simple search engine in the enterprise, federated search has yet to prove itself as a comprehensive, easy-to-use solution."

Crafting a More Effective Keyword Search

Crafting a More Effective Keyword Search

"Federal Magistrate Judge Paul Grimm called for "careful advance planning by persons qualified to design effective search methodology" and testing search methods for quality assurance. "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," he declared.

Then federal Magistrate Judge Andrew Peck issued a "wake up call to the bar," excoriating counsel for proposing thousands of artless search terms:

'Electronic data discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of electronically stored information. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to ensure accuracy in retrieval and elimination of 'false positives.' It is time that the bar -- even lawyers who did not come of age in the computer era -- understand this.'"

Wake-Up Call on Slipshod Search Terms

Wake-Up Call on Slipshod Search Terms

"Given the ubiquitous use of general purpose search engines such as Google and attorneys' routine use of legal search engines such as Westlaw and LexisNexis, it is perhaps surprising that lawyers frequently falter in formulating search terms, or "keywords," designed to retrieve relevant e-mails and other electronically stored information.

Nevertheless, courts have time and again confronted haphazard and uncoordinated search methodologies for ESI.

Evidently weary of deficient keyword searches, U.S. Magistrate Judge Andrew J. Peck recently issued a self-styled "wake-up call" to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information "by the seat of their pants," Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation. "

Do Your Searches Pass Judicial Scrutiny?

Do Your Searches Pass Judicial Scrutiny?

"Electronically stored information is increasing exponentially, and bills from law firms and discovery vendors to deal with this vast sea of data escalate significantly each year. Jason Baron, the director of litigation at the National Archives and Records Administration, believes that ESI is growing so fast that even with unlimited funds and human resources it will soon be impossible for humans to review these large document populations.[FOOTNOTE 1] Still, lawyers faced with potential malpractice claims and sanctions are loath to try new methods for handling the problem. It is time for change.

The traditional means used by litigators to address ESI is the application of keywords and Boolean search terms to identify relevant and non-privileged materials.[FOOTNOTE 2] While acknowledging that this method is unquestionably deficient, a recent article published in this publication concluded that "the available evidence suggests that keyword and Boolean searches remain the state of the art and the most appropriate search technology for most cases."[FOOTNOTE 3] We agree that, in a perfect world, if the parties can nevertheless meet and confer, and agree upon keywords to reduce the population to manageable proportions, the traditional judgmental method can be made to work. However, this is an imperfect world where plaintiffs and defendants do not always agree, and are not always equally motivated, to reduce costs. In fact, it is often quite the opposite. Moreover, even where the sides use judgmental sampling to agree upon keywords, the costs nevertheless usually remain too high."

Seeing the Future of Search in E-Discovery

Seeing the Future of Search in E-Discovery

"The practice of "search" as part of electronic discovery is evolving before our eyes. Suddenly, what was once deemed industry standard is insufficient. Keyword search, the legal profession's preferred method for sifting through large collections of electronically stored information to find relevant or privileged information, had been widely accepted by courts and the legal community because its effectiveness was assumed and unchallenged.

Until now."

Putting E-Discovery to the Test, Again

Putting E-Discovery to the Test, Again

"In May, the "Geekspeak" column examined a pair of decisions -- United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) and Equity Analytics v. Lundin, No. 1:2007cv2033 (D.D.C. March 7, 2008) holding that any challenges to or defenses of search methodology (what I will refer to as "automated" searches) in producing e-discovery must be scrutinized under Federal Rule of Evidence 702, which governs the admission of expert testimony.

Both opinions were written by Magistrate Judge John M. Facciola, a highly respected and influential voice in e-discovery matters.

In Victor Stanley Inc. v. Creative Pipe Inc., No. MJG-06-2662 (D.Md. May 29, 2008), Magistrate Judge Paul W. Grimm, who, with Facciola, has written the most influential opinion on e-discovery in recent years, following O'Keefe and Equity Analytics in applying the Federal Rules of Evidence Rule 702 principles to the analysis of how search strategies were crafted. Victor Stanley raises the bar in deciding how to craft searches of electronically stored information, and provides valuable guidelines for practitioners."

Keyword Searches: A Grim Prognosis

Keyword Searches: A Grim Prognosis

"It's assumed that lawyers are qualified to review documents for relevance, responsiveness and privileged character. But are we qualified to craft proxies for our judgment in the form of keyword searches? In Victor Stanley, 165 documents slipped by a privilege review employing keyword search and a cursory-sounding "title page" analysis for nonsearchable items. Defendants had unwisely abandoned efforts to secure a clawback agreement (a nonwaiver agreement providing that inadvertantly produced priviledged materials may not be used).

Plaintiffs counsel spotted the documents and dutifully reported their potentially privileged character, but argued defendants waived privilege by using a faulty review process. The court agreed, pointing to defendants' failure to provide information regarding keywords used, how they were selected, steps taken to assess the reliability of the outcome and the qualifications of the attorneys to design an effective and reliable search.

Thus another jurist dismisses the legal profession's ability to search ESI without demonstrated expertise. It's enough to give Perry Mason an inferiority complex!"

Your Search System Could Keep You Out of Jail

Your Search System Could Keep You Out of Jail

"The key point is the electronic nature of the information. ESI includes any information that can be stored and retrieved electronically. "Any" means office documents, HTML files, email, instant messages, metadata on podcasts, and all other electronic formats. Further, it doesn’t matter where the information is. It can be on your website, on your intranet, on computer hard drives, in email files backed up on tape reels stored in Iron Mountain vaults, and so on. Finally, you are allowed days, not weeks or months, to deliver this information. If it looks to a judge and jury that you are not producing incriminating evidence or that you do not have your ESI systems under control, then you can be found in contempt—or worse—even if your firm is innocent of the original charges.

Is text searching the only, or even the most important, element of an e-discovery plan? IT billing rates are high, but legal billing rates are even higher. Do you even have an e-discovery plan enabling IT to comply with FRCP expeditiously? To learn more, I asked a cross section of search system and e-discovery vendors: Attenex, ISYS, and Google. These vendors agree there are four key elements to successful e-discovery programs: broad file format (and language) support, text analytics, reach (finding information wherever it resides), and a well-defined and tested process for executing your plans. E-discovery is both a business problem and a technology problem."

Can E-Discovery Boost Solution Providers` Bottom Line?

Can E-Discovery Boost Solution Providers` Bottom Line?

"Once electronic records became admissible in court, the quest to gather, manage and audit those records became one of the most important elements of a corporation’s legal staff. Add to that a judicial system that has become more tech-savvy, and the excuse that the records “were lost” just doesn't fly any longer. Those issues have driven impressive growth in the data archiving and storage market, which in turn has created a new but related problem—retrieving relevant data.

That's where e-discovery comes into play. Before e-discovery tools became available, those searching for data relevant to a case had to manually search through data stores to build a silo of pertinent information. One worry was that some critical element would be missed, while another worry was that information not relevant to the case would be mixed in. Auditors and researchers found themselves turning to more and more indexing tools to help manage the data, yet the very nature of each case requirement would render some of those indexes useless."

When E-Discovery Is Put to the Test

When E-Discovery Is Put to the Test

"An influential federal district judge whose opinions on e-discovery are well respected may have set e-discovery on a path toward its most searching scrutiny yet.

In Disability Rights Council v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 (D.D.C. 2007), Judge John M. Facciola recommended "concept searching," -- the use of complex search engines that make use of linguistic or statistical patterning to locate responsive e-mails and electronic -documents, in order for a tardy producer of discovery to wade through voluminous electronically stored information quickly. Interestingly, Facciola made no mention of whether the use of concept searching tools should be subject to Federal Rule of Evidence 702, which governs the admission of scientific or expert testimony."