In the world of information, search capability reigns supreme. Companies seek to maximize their enterprise search capabilities for business purposes; marketers aim to improve Internet search effectiveness to profit from targeted advertising and display. Information and computer scientists work to develop new conceptual and artificial intelligence methods for search, coupled with collaborative and social networking capabilities that permit “the crowd” to improve search by the natural selection of useful information through frequent retrieval and reference.
On a hill overlooking that busy kingdom of search professionals sit the lawyers (and the judges), trying their best to formulate rules and best practices for searching data sets in response to discovery demands in litigation. Yet, despite the close relationship (indeed, overlap) between search efforts for business, commercial, and academic purposes, and search for purposes of discovery in litigation, to a large extent the legal community has ignored developments in these other areas.
Why? Several reasons may explain the disconnect:
- For a very long period, discovery in litigation was a purely paper activity. Documents were reviewed by hand for relevance (producing handsome profits to lawyers in document-intensive cases).
- The service professionals with whom lawyers traditionally worked handled documents primarily in the context of litigation (copying pieces of paper mostly). Modern e-discovery service vendors largely grew out of that tradition.
- The only search mechanisms generally taught in law school concern closed sets of materials, i.e., judicial opinions and other materials gathered by large publishing companies such as Westlaw or LexisNexis.
- Attempts to automate the discovery process focused almost exclusively on the ad hoc process of gathering information for the particular case. Lawyers and their support staff did not concern themselves with how information was created and structured.
Those days may be gone. Over the past few years, lawyers have increasingly come to recognize that they must embrace the rapid changes occurring in the fields of information science and search. Consider the following:
- Courts, like that of Judge Facciola of the District of Columbia, have suggested that expert assistance is required to formulate reasonable searches for purposes of discovery in litigation. See United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008): “Whether 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. This topic is clearly beyond the ken of a layman..." Lawyers guessing at the key-words that might retrieve relevant information simply will not do.
- Legal think tanks, such as The Sedona Conference, in attempting to formulate best practices for legal search, have expressly drawn upon the literature and experience of non-legal search professionals to engage in concept searching, fuzzy logic, and other search techniques.
- At least one systematic effort to compare search techniques in discovery is underway, sponsored by a group called TREC, affiliated with the National Institute of Standards and Technology (NIST) .
Despite these positive developments, lawyers have a long way to go. Most lawyers do not even bother to study search and information retrieval in law school. The lawyers who do know something about search have their own literature on search and information technology. They hold their own conferences on such subjects. They have their own associations for the study and promotion of law-related technology.
In the end, as with many things in law, money changes everything. As businesses increasingly demand cost savings in e-discovery, lawyers may be forced to learn how to use enterprise content management, tagging, and other techniques that may save money in discovery by helping to structure the data that must be searched.
The trend toward “cloud” computing, through Internet service, moreover, may force lawyers to recognize that they are part of a much larger information world. Indeed, lawyers and information professionals ultimately must work together to address a host of other information-related challenges, such as privacy, data security, viruses, and other problems.
[Disclosure: The author is a partner in the New York City offices of Jones Day, a law firm, and teaches Electronic Discovery at Rutgers and New York Law School. The views expressed are solely those of the author, and should not be attributed to the author’s firm or its clients.]
— Steven C. Bennett is a partner in the New York City offices of international law firm Jones Day.