I was just writing an article on Computer Forensics for the Federal Lawyer magazine.  In the days when I was a federal government lawyer, ediscovery and forensics were not issues.  In 1982 I bought a Radio Shack Model 100 portable computer and communicated with our office minicomputer by dialing in with a 300 baud modem.  In 1984 when I was leading a team writing regulations under the Comprehensive Environmental Reform Compensation and Liability Act (CERCLA), we had an IBM XT  for the entire team.  It had a 5 MB hard drive and was maybe one of five personal computers in the entire department.  What we know of today as ediscovery and forensics could actually be applied to the old mini computers we had, but at that point the volume of material was small.  If anything had to be produced we printed it.

Federal agencies get a certain degree of protection because many cases are "on the administrative record".  However, there are still many times when government lawyers have to do broader discovery.  There are also criminal cases, civil service cases, civil rights cases and many other kinds of cases where the government must provide discovery.  Ediscovery rules apply to the federal government the same as everyone else.  Life as a government lawyer presents an entirely new set of challenges.  So many government records are computerized that some government lawyers must be experiencing ediscovery as quite a nightmare.

Encase Forensic software can be an amazingly powerful tool.  When I use it I feel like a magician - I am able to see and understand so much about the content of a computer drive.

Since I use it a lot I have a lot of strong feelings about it, both positive and negative.  The part of it that drives me the craziest is the reporting function.  A forensic analysis requires the preparation of a professional report.  It needs to be something that can be submitted in court.  If attorneys had to use software for preparing their briefs as convoluted as Encase is for preparing reports, they'd probably go back to writing their briefs by hand or on typewriters.

What drives me nuts about the reporting function is that it is dynamic - which is one of those things that is a feature that feels like a bug.  If I find an item of interest, bookmark it, and add it to the report, the information may or may not stay in the report depending upon what else I do in the software.  For example if I open a zip file container so that I can analyze it and add it as a logical file then create a bookmark - I can put it in the report.  If I then close the logical file to free up memory, the bookmark will disappear from the report.  It's also very difficult to format the report so that it looks professional, and the notes function is very limited.  There is a workaround for the notes function which is to create a text document and paste the text into the note. 

 There is also a workaround for the constant changes in the report.  When I have an issue documented and I've found all the supporting evidence in the file, I have learned to stop my analysis and export the report at that point to a rich text file.  I have then memorialized my findings in hard copy and if the report continues to change internally in Encase, it is still documented.  Similarly, the final report goes into an rtf file and is reformatted in Word.  This works, but it adds time.  There are other report generating tools an other forensic software has better reporting.  I wish that Guidance Software would work a little on the reporting feature.

As a young associate almost thirty years ago I worked on an antitrust case that involved what at the time seemed like an incredible volume of over one million pages of documents. The law firm rented empty office space and filled an entire room with boxes of documents. I supervised a team of three paralegals and we spent months in that office, reviewing, selecting, redacting and bate stamping. We thought it was a massive project.

Today a one GB file can contain as many as 65,000 pages of Word documents or 750,000 text documents. Ninety six to ninety nine percent of business documents are created on computers. Budget computers have hard drives of 160 GB. Many cases today involve volumes of evidence that are thousands of times greater than what I once thought was a huge case.

There are a lot of posts around the web on the differences between Computer Forensics and Ediscovery. I've spent a lot of time thinking about this, and it seems to me that there are clear areas of difference - most forensics involves in depth analysis of one hard drive. Ediscovery usually involves readily available information across networks or groups of custodians.

But I'm really having trouble with the way that documents are collected for Ediscovery much of the time. When I do a forensic collection I take several carefully documented steps to ensure the authenticity of what I collect and to maintain the chain of custody. Ediscovery often involves the undocumented, non forensic collection of loose files and emails. If someone gives me a Word document that they simply copied onto a thumb drive it may have the OLE data, but I've lost any meaningful file system or operating system data, I can't verify the times on the documents and there isn't much that can be done with it forensically.

There are an incredible number of really interesting white papers available free on the web that are great ediscovery and forensics resources.

Some of my favorite places to find them are:

http://www.guidancesoftware.com/resources-whitepapers.htm

http://www.craigball.com/articles.html

http://www.fiosinc.com/e-discovery-knowledge-center/electronic-discovery-whitepapers.aspx

http://www.applieddiscovery.com/ws_display.asp?filter=White%20Papers%20%26%20Fact%20Sheets

I hate reading white papers on my computer, and I hate printing them. My solution - I load them onto my Sony Reader or Amazon Kindle.

The Sony Reader accepts the pdf documents in native format, but only the Kindle DX does. Sometimes though, the print is too small to read so I often prefer to convert the pdf to formats for the Kindle or Sony Reader. I rarely read books on my Kindle DX, but it has become a portable library of Forensics and Ediscovery papers.

Seasoned Litigator, Sheryl Katz, to Lead eClaris' Continued Growth in Electronic Discovery and Computer Forensic Markets

Los Angeles, CA (PRWEB) September 23, 2009 -- eClaris, an innovative eDiscovery consulting firm and service provider, today announced the addition of Sheryl Katz to its Computer Forensics and Electronic Discovery team. Katz joins eClaris as a Senior eDiscovery Consultant in its Los Angeles office. She has 30 years of combined experience in the legal and technology arenas and brings a potent blend of eDiscovery and computer forensics expertise to the company. This unique background allows Katz to provide essential input in shaping eClaris' strategy in the eDiscovery and computer forensic marketplace.

As Senior eDiscovery Consultant, Katz is responsible for the growth and service of eClaris' customer base. She will promote the company's consulting and data management practices. eClaris' clients now have an excellent resource with legal and technical knowledge to bridge the gap between the law and technology.

Before joining eClaris, Katz practiced law in Washington DC and Los Angeles for thirty years in the government and large law firms, most recently as a Partner in Graham and James. In her practice, she represented clients in many large matters and worked on significant discovery projects as part of large litigation matters. For several years thereafter she was the General Counsel of 101communications, LLC, a technology publishing company and additionally served as its Chief Information Officer for three years.

"I am excited to lead and develop eClaris' new business development efforts, bringing it to even greater heights," said Katz upon accepting the position. "I look forward to leveraging our leading-edge technologies and our consulting experience to meet the evolving needs of our clients."

"Sheryl possesses a unique mix of legal and technology expertise, strong leadership capabilities and proven history of growing businesses. She will be instrumental to eClaris' success in expanding its reach and market share." said Jacques Nack Ngue, Founder and President of eClaris, Inc. "We are extremely pleased to welcome Sheryl to our team."

Katz has had over 350 hours of training in computer forensics and is completing the requirements of the EnCase Certified Examiner program which certifies the use of Guidance Software's respected EnCase computer forensic software. In addition she has earned the Microsoft Certified Systems Engineer (MCSE) and Certification in Computer Compliance and eDiscovery (GIAC-GLEG) certifications.

About eClaris
eClaris is a dynamic eDiscovery consultancy and service provider dedicated to helping law firms and corporations classify, process and review® electronically stored information. eClaris combines superior legal expertise with the latest in scalable technology to provide clients with cost effective, accurate and accessible data in a timely fashion. For more information, visit www.eclaris.com or call 213.623.1620.

Safe Harbor
This news release contains forward-looking statements, including but not limited to, those that refer to eClaris' future development plans or operating results. Actual results could differ materially from those anticipated due to risk factors that include, but are not limited to, lack of timely development of products and services; lack of market acceptance of products, services and technologies; inadequate capital; adverse government regulations; competition; breach of contract; inability to earn revenue or profits; dependence on key individuals; dependence on outside parties for sales, customer support, and/or customer retention; inability to obtain or protect intellectual property rights; inability to obtain listing for the companies' securities; lower sales and higher operating costs than expected; technological obsolescence of the company's products; litigation; limited operating history and risks inherent in the eClaris' markets and business. The forward-looking statements in this press release represent eClaris' current views as of the dates of individual pages, and eClaris may disclaim any obligation to update these forward-looking statements.

To put it mildly, Electronic Discovery (“eDiscovery”) is a subject that has recently attracted a tremendous amount of consideration is both the corporate and legal sectors.  eDiscovery can be simply described as the procedure that occurs when a party to litigation asks for data from the opposing side that was generated, stored or preserved in an electronic configuration.  Electronically stored information (“ESI”) spans from email to text and database files to audio systems and beyond.  Surely, to enumerate all possible ESI formats would be quite exhaustive if not bordering on impossibility.

  

As it relates to employment proceedings eDiscovery is certainly not on the outside looking in.  Quite the contrary, it is well at home in this arena of the law.  In fact, the seminal eDiscovery case, the Zubulake case, revolved around workplace harassment and discrimination.  eDiscovery plays such a pivotal role in employment litigation perhaps since employee and employer alike depend so heavily on email and computer for communication and productivity.  Thus, effectively leveraging eDiscovery is frequently a sine qua non to pinpointing hard to find ESI in employment cases.  This is true no matter which side one is on, whether seeking evidence against the accused or attempting to invalidate the charges in the first place. 

 

Rule Number One: Think, Think, Think Before You “Send”

 

As noted above, the ESI most prevalent in employment proceedings is email.  More than half of all ESI data that gets produced in eDiscovery is somehow connected to an email, and this makes perfect sense.  Both employee and employer alike are considerably more relaxed when using email and will communicate thoughts that would never have been transmitted in person or even by telephone.  When contrasted against other modes of communication it is clear that email has evolved into the workplace medium most likely to produce harmful and damaging comments about superiors and colleagues. 

 

Nonetheless, once the send button has been selected there is no going back.  A copy of the email will forevermore belong to someone else and can be relevant for future discovery. What can happen to it next?  That copy can be printed, forwarded or saved.  In essence, it becomes fixed in time and deleting it at this point will do no good. One should not erroneously believe that once an email has been deleted, damaged or destroyed that they are out of the woods unable to be tracked and monitored.

 

Once email and other electronic records are created, eDiscovery may enter employment litigation in full force. Forensic personnel and Electronic Discovery consultants are frequently able to locate the electronic evidence to prove or disavow the charges.  When gathered if the e-data is unflattering – signs of discrimination, harassment or other illegality is shown – then the data can make, or break, a case.  Taking steps to ensure a throughout and seamless electronic data collection will quickly become urgently critical to the fledgling employment case.

Ooops, What If I Already Sent That Email?

Now is the time to gather your troops.

Whether initiating or responding to employment litigation one should assemble a diverse, inter-disciplinary team.  The following team members should be consulted both prior to litigation to lay out strategy and, once litigation hits, to respond in kind.

·        Records Member. This individual will aid the legal team with any physical, hard copy, records stored outside and within the business. The records member should then ensure that all relevant data is properly preserved and stored in a secure location. 

·        Compliance / Audit Professional. This person assists with assessing which individuals and what data was involved in the case at hand as related to the information risk management procedures that were, or should have been, crafted by them.  If no policy exists their presence here will be to learn what to insert into future protocols to help minimize costly litigation down the road in the future.

·        Counsel. This person will assess the legality of the employment issues at hand during discovery and the entire litigation.  The attorney, whether in house or outside counsel, should have in-depth knowledge of the key facts being contested as well as all probable counterclaims, defenses and any possible litigation emanating from a third party.  With this knowledge in tow, counsel must then draft a thorough and enforceable litigation hold notice to be sent to the parties above.

·        IT Constituent. This member must be able to pinpoint, gather and safeguard all pieces of ESI as requested by counsel.  After all pertinent ESI has been accounted for this person will need to properly protect it over time. The IT member should carefully identify all data that might be relevant for the case at hand by focusing on all accessible ESI first and foremost. 

Once assembled, the team will allow a business to take concrete steps needed to weigh the necessity to preserve data, deal with the shortcomings of any ESI data systems and reduce any interruption to ongoing business operations.

Next Time, Head This Off At-The-Pass (With A Thorough Data-Retention Policy)

As one may have heard, abuse of the discovery process as it relates to ESI may yield a plethora of sanctions. These sanctions may be invoked, among other reasons, if a party does not comply with a good faith, reasonable data-retention policy.  Furthermore, when data is damaged or destroyed in accordance with an established data retention policy that alone can be considered as adequate proof of one’s good faith.  Suffice is to say, having a proper data retention plan in place can spare costly litigation, employment-related or not.

 

When drafting the data retention policy keep in mind all relevant regulatory and legal requisites regarding the relevant time period to preserve the ESI and what type of data is being retained by the company.  Have it tackle email well – since, it bears repeating that, most employment-based eDiscovery revolves around email – and resolve how long email should be preserved, where emails should be kept and what email policies, if any, should be distributed to employees.  Random email surveillance may be included as well.  Normally, liaising with financial personnel, IT, company employees and legal counsel will be required.  Once created, it goes without saying; the data retention policy must not only be implemented but properly monitored.

In employment matters, the universe of possible sanctions for improper destruction of pertinent data pursuant to a faulty, or non-existent, data retention policy is quite broad. In instances of egregious behavior the punishment may be devastating. A fact finder may reward attorneys' fees and other costs connected with associated motions as a sanction. Courts also may also assume that the party that destroyed or damages the ESI in question did so because it was harmful to their position.  This adverse inference usually goes hand in hand with bad faith.

The aforementioned non-withstanding, the data retention policy created does not necessarily mandate the total security of all ESI at any and all costs.  Courts when dealing with employment litigation have made it abundantly clear that both parties must only take

 reasonable steps within their data retention policies to maintain ESI for trial.  This is equally applicable whether the litigation is reasonably anticipated or actually pending.  As a result, a well constructed data retention policy is essential to guaranteeing that one can comply with any preservation and production regulations and, at the same time, minimize the loss of ESI when faced with probable litigation by ensuring that all pertinent data is properly preserved.

What Else Can I Do To Protect My Company?

 

As seen above, manipulating or damaging evidence can be costly.  There are numerous court decisions in the realm of employment litigation that highlight the reality that all team members must collaborate together, early on and throughout.  This synergy will allow the business to bypass crippling sanctions for abusing the discovery process as it relates to ESI. 

 

Below are a few best practices to consider going forward:

• Look-out for any retaliation allegations. Retaliation claims account for many employment-based ESI decisions.  After any employee so much as even mentions harassment or discrimination, that typically will serve to put the company on notice of potential litigation and trigger its duty to preserve all relevant ESI. Documents that must be preserved include ESI relating to how the employee was treated after their claim occurred.
• Have an email training session. Many employees are unaware that their emails can be produced during discovery and can be used to harm the company during litigation. Even more personnel are likely under the impression that emails can be truly erased just by clicking on the “delete” button.  Address these issues with your team and emphasize how and when emails can be damaging when taken out of context.
• Backup data when terminating an employee. Most businesses will expunge an ex-employee’s hard drive so their replacement can use the computer. Before wiping any ESI accessed by the ex-employee first go ahead and backup that data if there is any sign the ex-employee might commence litigation.

Companies are constantly blamed for seemingly innocuous emails, and other ESI, that get them into hot water.  In parallel to the above best practices, implementing an effective intra-company ESI communication strategy, akin to the collaboration that should occur when crafting the data retention policy, is essential.  Specifically, human resources (likely first to know about potential litigation from former and current employees) and information technology (which will be charged with collecting and preserving pivotal ESI data) must be on the same page.  This will allow businesses to minimize employment-related litigation, particularly in light of the new and ever-evolving electronic discovery rules.

Conclusion

Now, take a step back.  Picture the plethora of emails that your team may be sending and receiving emails or other ESI on behalf of your firm or business while you are reading this very article.  Upon further reflection chances are you may not be at ease that every single employee's usage of those emails or confident that the content located within is completely acceptable.  Electronic discovery certainly impacts modern employment litigation front and center as your organization may be obligated to clarify or validate those very emails or other ESI in court.  Consequently, one must act proactively, as noted above, to help guarantee that the business or firm is not put in peril by a smoking gun email or other mismanaged pieces of electronically stored information.  Do not be left behind.

 This article was published in the Summer 2009 newsletter of the ABA’s Litigation Section, Employment and Labor Relations Committee

eClaris Founder and President, Jacuqes Nack Ngue, CISA, Selected to Present Coveted Electronic Discovery Lecture on October 6 

 

Los Angeles, Calif. — September 14, 2009 — eClaris, an innovative eDiscovery consultancy and service provider, today announced that its Founder and President, Jacques Nack Ngue, CISA, will present at the October 6th Electronic Discovery You Can Understand workshop at the popular DOCUMENT Strategy Forum taking place at the Hyatt Regency O’Hare in Chicago.  Mr. Nack Ngue will discuss effective strategies for conducting electronic discovery, including when the duty to preserve arises, how to evaluate electronically stored information, reviewing for responsiveness and managing productions of electronic data.

 

This year, DOCUMENT Strategy Forum’s mission is to “educate enterprise-users who are responsible for the Creation, Production, Delivery, Remittance, Preservation and Management of the transactional document.”  As more demands are being put on the transactional document, it is imperative that producers’ of transactional documents stay ahead of the curve by learning about the ramifications of electronic data.  In imparting his expertise on this subject Mr. Nack Ngue will emphasize that electronic data no longer falls on the shoulders of one department. Rather, it requires company-wide communication and the execution of a sound policy that is supported throughout the entire company.

 

Speaking invitations at DOCUMENT Strategy Forum are reserved for company founders who have demonstrated initiative, vision and leadership in their field.  "Indeed, it is an honor to be invited to contribute at one of the most prominent and exclusive events geared towards the life-cycle of transactional data," said Jacques Nack Ngue, CISA, Founder and President of eClaris.  "Although change in the legal and transactional worlds is at times gradual, there is certainly an important and integral role to be played by electronic discovery. I look forward to conveying my knowledge of this subject on to the attendees."

 

Copies of Mr. Nack Ngue’s presentation, "Electronic Discovery You Can Understand" are available by request by sending an email to service@eclaris.com.  Key sections of the seminar include information management, data identification and preservation, effective document collections, data processing and review techniques and managing data productions.

 

Mr. Nack Ngue has almost a decade of experience in complex network infrastructure, database design and software development. He has served as project manager on multi-national cases for both AmLaw 200 law firms and Fortune 500 companies. Mr. Nack Ngue is Founder and President for eClaris, an eDiscovery consultancy and service provider, and is a member of the Information System Audit and Control Association.

 

For more information about the conference workshop and to register, visit:

http://www.documentstrategyforum.com/index.html

 

About eClaris

eClaris is a dynamic eDiscovery consultancy and service provider dedicated to helping law firms and corporations classify, process and review® electronically stored information. eClaris combines superior legal expertise with the latest in scalable technology to provide clients with cost effective, accurate and accessible data in a timely fashion. For more information, visit www.eclaris.com or call 213.623.1620.

Safe Harbor

This news release contains forward-looking statements, including but not limited to, those that refer to eClaris’ future development plans or operating results. Actual results could differ materially from those anticipated due to risk factors that include, but are not limited to, lack of timely development of products and services; lack of market acceptance of products, services and technologies; inadequate capital; adverse government regulations; competition; breach of contract; inability to earn revenue or profits; dependence on key individuals; dependence on outside parties for sales, customer support, and/or customer retention; inability to obtain or protect intellectual property rights; inability to obtain listing for the companies' securities; lower sales and higher operating costs than expected; technological obsolescence of the company's products; litigation; limited operating history and risks inherent in the eClaris’ markets and business.  The forward-looking statements in this press release represent eClaris’ current views as of the dates of individual pages, and eClaris may disclaim any obligation to update these forward-looking statements. 

Your client’s dreaded day has arrived.  His or her beloved company has been subpoenaed, sued, or threatened with impending litigation.  Chances are your client’s first thought will not be wondering about exactly where the company keeps its electronically stored information (ESI).  But it should be.  All litigation provides for a discovery period, in which evidence will be sought by the opposite party.  In the not so distant past, document production consisted solely of making available or reproducing paper records, such as agreements, contracts, letters, and miscellaneous financial information.  Not so today.  According to a recent University of California, Berkley survey, 93% of all information is now created in an electronic format.  Considering email alone, the average user can easily generate between 50,000 and 100,000 documents per year.  With numbers like these, it is no wonder that electronic discovery has become a matter receiving acute focus, with the goal being to find a way to effectively manage and sift through massive amounts of electronic data to locate the key information.

 

Traditional Search Methodologies

Not too long ago, attorneys would comb through repositories of electronic evidence in one of two distinct ways.  The first involved conducting electronic searches, using relational or Boolean methods that searched for words insofar as they connect to one another.   The second wass via key word searches, which simply targeted a known term.  Each of these two methods have been utilized beneficially for many years by attorneys, and they are comprehended well and have been generally accepted.

Relational and key word searches, however, have their drawbacks as well.  These searches can recognize only electronic data that contains the specific search words, either individually or in tandem..  Each methods thus is incapable of recognizing  documents that contain similar terms or variants that do not exactly match the chosen search terms.  Examples of missed items are initials, words that have been misspelled, nicknames, and synonyms. 

Jacques Nack Ngue, founder and lead ediscovery specialist at eClaris, Inc., has commented that relying solely on Boolean or keyword-search technologies, without employing other search methods that have been developed, “is akin to using a typewriter when computers are available and accessible.”  Litigators that fail to leverage these new possibilities run the risk of being out-searched by more technologically savvy opponents.  Whereas traditional search methods are adequate for small databases, Ngue emphasizes that they are invariably lacking when dealing withthe legal analysis of massive databases involving complex queries.  There must be, and is. another more thorough, more powerful alternative.

 A Third Way— Concept Searching

Given the limitations of mere keyword and Boolean search methods, the legal industry has recently turned to “concept searching” as a potential solution.  The producers of this technique maintain that concept searching has the power to more effectively and efficiently winnow out that handful of significant documents from millions of pages of electronic discovery.  The primary advantage is that this method, if effectively used, can significantly reduce the need for laborious and expensive page-by-page attorney review.

As one might imagine, some concept-search technologies are better than others.  In order to determine whether a specific technology is a viable option, it is first instructive to understand how it operates.  Each concept-search technology will likely include some or all of the following three tools: (1) taxonomy abilities; (2) clustering functions; and (3) Bayesian demarcations.

“Taxonomy abilities” enable the concept search to classify data containing subcategories of language or terminology.  In particular, this technique is used to categorize documents containing words that are subsets of issues directly relevant to a particular case.  As an example, if Major League Baseball were a relevant subject, taxonomy abilities could also identify documents that use such terms as “Yankees,” “Dodgers,” and “Cubs.”  Taxonomy abilities are vital for effectively pinpointing and managing large volumes of subset relationships. 

 

A second tool is “clustering functions.”  This technique operates in a manner directly opposite to the conventional Boolean and keyword search techniques, which automatically recognize potentially relevant data via directly identifying terms either individually or within a defined relation.  Conversely, clustering functions use arithmetical relationships, which makes it possible to identify data containing a penumbra of words grouped or clustered together in pertinent categories.  In essence, via the use of clustering functions, documents are selected based on the greater or lesser likelihood that their overall terminology pertains to a relevant topic; the more words a document has that correspond with the collection of relevant terms,  the greater the likelihood the document will relate to the same topic and thus be relevant to some important issue in the litigation. 

 

Third, there are "Bayesian markers."  Named after 18^th century statistician Thomas Bayes, Bayesian benchmarks involve the use of probability to identify relevant documents.  The use of Bayesian markers maximizes the use of skilled assumptions about the probable significance of data based on in the case history of spotting relevant documents.  Bayesian search results are sorted and positioned based on the forecasted chance of the probable significance of certain kinds of documents to litigated issues.

So, Which Approach Wins The Day?

Concept searching seems promising.  The breadth, efficiency, and exactness that can be potentially accomplished by using this technology are truly remarkable.  Nonetheless, many have wondered if concept searching is superior to the aforementioned Boolean and keyword approaches.

There is a reason that Boolean and keyword searching have become standard: prevalence.  All of the major legal-research search engines, such as Lexis Nexis^®, Loislaw^® and Thomson-Reuters Westlaw^®, use these search technologies.  As a result, both court and counsel are quite familiar with the way they operate. In addition, the straightforwardness of these searching techniques are readily understandable.

The simplicity of Boolean and keyword searching, however, cuts both ways.  Boolean searches can interrogate only the data containing specific, pre-identified terms.  In other words, before a document can be identified as relevant, the attorney must identify in advance each and every specific word that will be searched for.  In reality, of course, people communicate with a variety of terms.  This limitation of Boolean and keyword searching almost guarantees that relevant data will be passed over.  Moreover, keyword searches can be over-inclusive.  Keyword searches necessarily target every single document containing the chosen term, regardless of whether the term’s actual use in context is is always relevant to the case. 

By comparison, concept-searching tools do not rely on identifying the mere presence of specific terms within a given document.  Instead, concept searching is smarter than that, for it includes techniques for determining whether a word’s use in context is likely to be relevant.  As a result, for analyzing massive electronic databases, concept searching is capable of identifying highly relevant information that keyword and Boolean searches cannot identify.

That said, there are nevertheless drawbacks to concept searching.  In particular, the possible benefits of concept searching must be weighed against the cost, both in money and in resources, necessary to employing the method.   For example, concept-search techniques, like Boolean and keyword searches, can and often do yield many documents that are not truly significant. Counsel must, as always, weigh the costs and benefits.

The Verdict

While concept-search technologies potentially  exceed the performance of Boolean and keyword searches, their time has not yet arrived..   For effectiveness, speed, and accuracy, as of today nothing beats Boolean and keyword searches, especially when employed in iterative progressions, in which subsequent searches further winnow previous search results.  Yet for highly significant matters involving millions of pages of electronic data, concept-search technologies are worth deploying, whether separately or in concert with keyword and Boolean searches. 

The evidence introduced at trial is inevitably a product of the discovery process.  Even in complex lawsuits involving millions of pages of electronic data, a judge or jury can only view and digest a limited amount of data.  This limitation makes attorneys’ analysis of produced documents all the more important.  Given the proliferation of electronic data, winnowing out that handful of truly significant documents has become harder to accomplish.  When a lawsuit involves millions of pages of documents, attorneys who use smart search methods gain an advantage over attorneys who know only how to work hard.

In order to best employ advanced search methods, counsel should  learn how the concept-search technologies operate and take into consideration their potential benefits.  In the end, the lawyer who better understands how to effectively identify the important documents may well win the day.

 This article appeared in the Summer 2009 edition of Proof, the newsletter of the ABA's Trial Evidence Committee. 

Santa Monica, CA