E-Discovery Search: How To Get It Right

Reprinted with permission from FindLaw.com

Even companies that truly want to fulfill their e-discovery

obligations properly are struggling to figure out exactly how to

get the job done. Indeed, in recent months, the topic of

e-discovery "search" has taken center stage. Traditional

approaches to sifting through large collections of data for

relevant or privileged information, such as keyword and Boolean

search, are being called into question by some members of the bar,

the bench, and the industry at large.

Seemingly overnight, the once familiar practice of document

review in discovery has emerged as a new expert discipline. Courts

rightfully are concluding that search in e-discovery can be a

complex, scientific exercise. E-discovery in some cases may even

require expertise in fields such as linguistics, statistics, and

computer science.

In one of the most important e-discovery cases this year,

Victor Stanley, Inc. v. Creative Pipe, Inc., Magistrate

Judge Paul Grimm of the District Court of Maryland not only

characterized search as an "information retrieval"

problem, but also raised the bar for lawyers and litigants,

requiring them to prove (e.g., through quality assurance

testing and measurement protocols) that the search methods they

employ are reasonable.

Meanwhile, dozens of vendors and consultants purport to offer

cure-all search technology, but their claims are not necessarily

backed by proof. How are litigants supposed to defend their search

methods if their technology vendors and service providers cannot do

so themselves?

Well, new developments in industry and government are taking

shape to address this need.

For example, the National Institute of Standards and Technology

and the U.S. Department of Defense created the Text Retrieval

Conference, or TREC, as far back as 1992 to support research

on text retrieval methodologies. TREC formed its Legal

Track more recently in 2006 to meet the exploding demands of

e-discovery.

The Legal Track seeks "to apply objective benchmark

criteria for comparing search technologies" in the context of

e-discovery, and to discuss capabilities and limitations of various

automated approaches to e-discovery. The expected result is a

concrete reference by which to evaluate competing technologies and

vendors.

The profile of the Legal Track rose considerably this year with

the introduction of a new testing protocol patterned after the

real-world demands of litigants in discovery. The new protocol was

designed to...