Proper use of Search Terms....“the message has not gotten through.”

Last week we wrote about the Gross Construction opinion and counsel’s lack of sophistication regarding the use of search terms. Here are some additional excerpts, this one quoting our favorite Magistrate Judge Grimm.
William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009). See K&L Gates summary. BTW...if you have not visited the K&L Gates eDiscovery case law library, you should do so.
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Having been put in such a position, the court took its opportunity to write a brief opinion addressing the need for care and collaboration in crafting search terms in light of its assessment that “the message has not gotten through.” First, the court presented an excerpt from an opinion of Magistrate Judge Paul Grimm, regarding the proper selection and implementation of terms:
“While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-know limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge."
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"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."

Court Issues ‘wake up’ call to counsel on keywords - has it been heard?

The short answer is for the most part, no, the message has not been heard. Search terms continue to be simply thrown against the wall in many cases without much thought, planning or validation.
It has been more than a year since the William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009), opinion out of the Southern District of NY. In that opinion, the court provided specific direction on the formulation of search terms. As this court notes Specifically:

"This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar."

So why are the court's suggestions not being followed? In my view, its education. The ESI service provider industry must take and carry the educational flag. Attorneys are trained to practice law not develop repeatable and defensible processes. We as the "experts" in this area must get aggressive and help educate and guide. For more on this topic, see the "Post Process" blog.

Lateral Data Viewpoint Works for Fenwick & West

LARGE CASE PROCESSING IN A MATTER OF DAYS

"While some vendors claim weeks or months to process cases from collection to review, Viewpoint e-Discovery gets the job done in a matter of days. The implementation of Viewpoint helped eliminate a dozen or so interspersed, costly software platforms and added new capabilities for legal and support teams -- capabilities that eventually led to the Fenwick & West team using the software for 80 percent to 85 percent of all litigation matters."

"We're always under pressure to get results to our attorneys and clients. Compared to our previous e-discovery solutions, Viewpoint allows us to process information three to five times faster. With the volume of data growing exponentially -- we currently have over 100 terabytes of data hosted by Viewpoint -- speed is incredibly important. There's no question, Viewpoint is a fundamental tool for us."
See the Law Technology News Article here.

Using Technology to Reduce Legal Fees

I probably spent more time laboring over the title of this piece than I did writing the entire article. It has become an unspoken concern by some that technology is quickly reducing what they have historically spent a large amount of time doing – document review. Until recently, I never actually heard a lawyer say it out loud because they could point to other concerns to justify billing on average $282 per hour. See ALM Legal Intelligence 2010 Survey of Billing and Practices for Small/Midsize Law Firms. “If I or a member of my firm does not do the review, something is going to get missed”, some said. “I don’t trust contract reviewers”, others might say. Or, “I just don’t trust technology”. The list goes on. With contract attorney review rates below $100 per hour and litigation technology and processes mature and defensible, those arguments have all but disappeared. Over the past several months, I’ve actually heard lawyers utter the unspoken concern – “using technology to reduce the volume of documents and then contract reviewers at reduced rates is going to take work away from my firm.” To which I respond, “Yes sir it certainly will.” I was neither surprised nor disappointed by the statement. A law firm is not a non-profit institution. They are in business to make money, pure and simple. Historically, a large part of some practices are built with fleets of lawyers highly dependent upon lots of document review work. An increasing number of those same lawyers, however, have realized that corporate America is becoming increasingly more critical of the scorched earth practice of law where the more documents reviewed and produced the better. The game has changed. The use of technology to find the hot documents quickly and eliminate the irrelevant from review has entered the mainstream. The use of well supervised professional document review attorneys at dramatically reduced rates is here to stay. Many firms are seeing corporations take data reduction and document review out of the hands of their outside lawyers. Corporations are beginning to base attorney hiring decisions on how well they understand technology. Many of the more progressive law firms not only understand these principles, they are embracing them. Technology in combination with highly process oriented professional review attorneys does substantially reduce the cost of discovery. That fact can’t seriously be disputed any longer. Those that get it, embrace it, and get with the program will not only survive, they will flourish. And those that don’t? Well, the pool of clients available to them will continue to shrink. So, why did I struggle with the title of this article? Well, because lawyers have buttered my bread for more than 25 years. Then I decide, isn’t that a bit hypocritical given this subject matter? What say you?

The “Cloud”. What is it and why all the fuss?

Each morning I receive an email from Blawgletter, the alter ego of none other than my old boss Barry Barnett over at Susman Godfrey. Always a good read and if you do not already subscribe, do so. I am often tempted to post on a related topic, but usually don’t. Today’s post was about the “Cloud”. Those who know me know that this is a topic about which I am very passionate. Today I could not resist and as a result, this post.
Blawgletter writes of lawyer’s concerns over the security, or lack thereof, within the cloud. “We worry some about storing confidential client info in the cloud, our work product especially.” As Blawgletter points out, the “Cloud” is just the internet. In fact, the “Cloud” is nothing more than a buzz word created from “Cloud Computing”, the origin of which is hotly disputed and several attempts have been made to trademark the phrase. The first use of “cloud”, outside of describing that white fluffy stuff in the sky, was as a metaphor for the internet in a paper published by MIT in 1996. So, it’s not a new term. See post “Who coined the phrase Cloud Computing”. But I digress. Like the white fluffy stuff, the cloud is everywhere. What exactly are examples of information stored in the cloud? Everyone who uses a computer places information in the cloud every day, including that all important confidential information. If someone to whom you send email uses Postini spam filtering or email archive system, for example, you’re leaving information in a “cloud” without even knowing about it or giving your permission. Google apps, gmail, hotmail or any of the external email systems or applicaitons leave information in a “cloud”. Essentially any information hosted or sent outside your firewall is “in the cloud”. Blawgletter’s concerns are real and not imagined. For lawyers, eDiscovery (another marketing buzz word someone coined) hosted at a service provider is of particular concern. Virtually every case of any size these days require hosting or processing at some level and usually data resides on a server somewhere outside your direct control. Everybody with a server, software and a connection to the internet is in the eDiscovery business these days. The reputable ones have many layers of authentication, encryption and conduct security scans regularly. My company is scanned by financial institutions frequently becuase we keep terabytes of highly sensitive information, for example. The security tokens and multiple layers of authentication are indeed an annoyance at times, but necessary. Keeping information “in the cloud” is unavoidable. We seem content to bank online; pay bills with the iPhone; connect our whole house to the “internets” with no firewall. Blawgletter is exactly on point – we all need to pay more attention to where our information is kept and how it is protected, particularly in today’s fast paced eDiscovery world where there seems to be somebody new every day. Be careful out there in that "Cloud".