Concept Searching in Litigation Support: What the Courts Have to Say
Magistrate Judge John Facciola
In Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Authority, 242 F.R.D. 139 (D.D.C. June 1, 2007), it was determined that backup tapes needed to be restored. Judge Facciola then had to decide how they would be searched to best locate the relevant material and referenced this opinion: "recent scholarship... held that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results." For example, a keyword search for embezzlement would identify any email with that specific term, but a content-based search would highlight documents that have a substantive association with the messages uncovered by the search terms, including those that do not share any similar wording (e.g., theft, fraud and money). See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt? 13 Rich. J.L. & Tech. 10 (2007)
In United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), Judge Facciola dismissed a defendant's objection to the adequacy of keywords used by the prosecution and ruled that a party challenging the efficacy of an opposing party's search terms must do so through expert testimony. He noted the complexity of search in the identification and production of electronically stored information and concluded that "[w]hether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.... Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread."
Magistrate Judge Andrew Peck
The opinion in William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009) has been referred to as "a wake up call” to attorneys about the necessity for conferring with opposing counsel in order to agree upon search terms or key words to be used in searching ESI. Magistrate Judge Andrew Peck was frustrated about the process and had this to say: “This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.” He also stated, “While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.” The Court had to actually create its own search methodology and then ordered the parties to use these terms in its searches.
In this opinion, Judge Peck made specific reference to both Magistrate Judges Paul Grimm and John M. Facciola's search term opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008); United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) and Equity Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C. 2008).
Magistrate Judge Paul Grimm
Judge Paul Grimm’s opinion provided guidance on how to best conduct keyword searches in a defensible manner. Judge Grimm emphasized that keyword searches are prone to produce over- and under-inclusive results. Judge Grimm suggests two other possible approaches: either producing parties should adopt a “collaborative” approach to conducting keyword searches, whereby each party agrees on a search methodology; or, they should use a “best practices” approach, such as the one suggested by The Sedona Conference, which includes sampling and iterative searches.
RiverGlass Solutions for eDiscovery substantially reduces costs and increases responsiveness, allowing advanced searching to commence shortly after the data is collected. With RiverGlass, you’ll get the advantage of using an early assessment data tool prior to the 26(f) conference. Pre-26(f) searching is consistent with early case assessment practice and widely preferred by large corporations because it enables them to assess exposure and the merits of the case at the earliest possible opportunity. RiverGlass Concept Search has been designed to find documents containing words with similar meanings to the keywords in a search. In addition, fuzzy search technologies have been put in place to find misspellings of words.
