Grasping the Concept
Did you know that 93 percent of all office records and documents are in digital form? Or that one terabyte of information, which large cases often involve, if printed to paper would fill the Sears Tower four times?
By now, most litigators have fantastic figures they can throw around to illustrate just how much electronic documents have changed discovery. But not all lawyers can explain the most practical matter—how to analyze and weed through that much information.
Search technology is increasingly important to litigators since electronic evidence is central to many cases. New search technology, often known as concept searching, is promoted as a better way to find relevant documents.
But e-discovery experts warn that while technology can help, it cannot make e-discovery painless. “There are good tools to help people do their job, rather than tools that do their job for them,” says Joe Romanowski, vice president of product strategy for Zantaz, a litigation support company based in Pleasanton, Calif. “You can’t have the tool do it for you; you still need to look at it with human eyes.”
In recent years, technology companies have tried to make computers understand the meanings of words, so that lawyers can find documents related to the topics in which they have an interest. Fios, one of the largest electronic discovery firms, offers concept searching that lets researchers enter a query in plain English or paste entire paragraphs from a relevant document. The system finds relationships between each word and brings back documents about the subject matter a researcher is seeking.
One of the best-known concept-searching firms is Dolphin Search, which uses computer algorithms based on the neural patterns of dolphins. The idea is that the software gets smarter by analyzing the searches that were most successful in meeting the researcher’s criteria.
“The best example of a place where concept searching might make sense is a sexual harassment case,” says Sean Bell, director of product management at LexisNexis Applied Discovery. “You can’t search for the term ‘sexual harassment’ and expect to find what you need; you have to search for words related to harassing behavior.”
But it’s very difficult to explain to a judge that a lawyer has searched thoroughly when it’s difficult to explain how concept-search technology works. Not only that, but lawyers might not even know whether they’ve gotten the results they wanted. “If you’re not an expert in algorithms, how do you explain to a judge what this black box does?” Bell says. “Anybody who says concept searching works the way an attorney’s brain works is a fool.”
In an ideal world, an associate would read every document in a case, flagging interesting material for senior attorneys to review. But with huge cases, that’s often impossible, and only search technology can help. But whether a lawyer uses keyword searches or concept searches, the technology is still only as good as the search terms. “Humans still have to do searches and they’ll have to defend the search terms they chose to a judge,” says Mike Kinnaman, vice president of marketing with Seattle-based software-searching provider Attenex.
Bell says the key to electronic discovery is not the search technology used but the human factor—whether the two sides in a trial agree on a sensible list of words to use. Lawyers need to confer to agree on search terms that will likely produce potentially responsive documents without being so vague as to bring back too much. Likewise, search terms that are too restrictive could miss important or even smoking gun documents. Judges don’t care what technology was employed. All that matters is that the right search terms were used, a workable number of relevant documents were retrieved, and relevant information was not missed.
“A computer is still not smarter than a good lawyer,” Bell says.