Luddite lawyers, consider yourselves warned. While it’s becoming common practice to hand off the logistics of electronic discovery to consultants or outside vendors, recent court rulings are proving that the duty of compliance still lies with the lawyers.
Case in point: Last year’s $1.5 billion judgment against Morgan Stanley for its role as financial adviser to the failed Sunbeam Corp., plus $15 million in fines stemming from defense lawyers’ inability to produce electronic documents in court. Among other things, Morgan Stanley’s lawyers failed to adequately comply with an electronic discovery request when a programming glitch caused its e-discovery software to ignore as many as 7,000 e-mails.
The particulars of that glitch likely will be one of the myriad issues hashed out during the appellate aftermath of Coleman Holdings Inc. v. Morgan Stanley & Co. Inc., No. CA 03 5045 AI (Fla. Cir. Ct.). But the problem is not all that uncommon–software systems may fail to search through many types of data, says Montgomery, Texas, lawyer Craig Ball, who works as a court appointed special master on technology issues in litigation.
Preventing such failures does not mean that a lawyer must now be both legal expert and techno whiz, says William Speros, an e-discovery consultant in Cleveland. But both experts agree that understanding some of the tech basics of e-discovery–search terms especially–can go a long way toward preventing problems.
Search engines are the only way lawyers can weed through millions of pages of electronic documents. But search technology is still imperfect, Ball says.
Most searches are done with simple keywords, but he says his experience shows that keywords only generate 20 percent to 50 percent of the responsive documents. Another ripped from the headlines example: In the federal investigation involving the leak of CIA agent Valerie Plame’s identity, allegedly incriminating e-mails from Karl Rove weren’t produced because improperly chosen search terms failed to find them, according to Newsweek.
Speros says he, too, has grappled with formulating effective search terms. In one case he worked on, he says, a big insurance company was looking for documents pertaining to young people using the legalese-ish search term minor. It didn’t work. What yielded the most relevant information were terms related to young people, such as school, pediatrician, play, mother and father.
Another option is a relatively new technology called concept searching, which allows lawyers to search for words or ideas. Ideally, the search software finds related documents even if keywords–like minor–don’t appear in them.
Check Your Work
As with any technology, it’s imperative to perform frequent, thorough checks to make sure that the searches are working. To validate the systems, Speros suggests searching for documents known to be in a database to see if the search software returns the documents. This also allows lawyers to learn which search terms work and what kind of results they produce, allowing them to come up with the best search strings, he says.
Without validating the results, lawyers have no way of proving they fulfilled their duty to search for documents. “You have to be thoughtful about these things,” Speros says. “It’s not useful to tell the judge, ‘Well, this is what the computer told us.’ You have to be able to demonstrate you checked the computer’s work.”
Lawyers should bring more people into the electronic discovery process, Ball says, to “look over the computer’s shoulder.” Lawyers can entrust most searches to computers, but data that is most likely to bear relevant documents ought to be checked. “Human beings can look at a page and see a misspelling and figure it out,” he says. “Technology has its place, but so do people.”