Search Prowess Is Key to Effective E-Discovery

Of the many challenges that bedevil e-discovery as the practice matures, two are most easily resolved by technology:

  • The need to reduce keyword hits to a manageable number without omitting relevant results; and
  • The need to view and search documents in their native formats.

Because thorough and effective search depends upon having the complete original text and metadata available via the native-format document, these needs overlap, and are best addressed together by e-discovery solutions that incorporate native-format document viewing with advanced search capabilities.

Cutting Hit Lists Down to Size

Courts are exerting downward pressure on the breadth of e-discovery requests. For example, in I-Med Pharma, Inc. v. Biomatrix, Inc. et al. (2011), a federal court found that even though a keyword list had been stipulated to by both parties, the resulting hit list was so long that the court further restricted it, ruling that when discovery excessively burdens either party, "exceptional circumstances" are not required to justify an order to modify the search.

To stem the tide of burdensome e-discovery requests, courts are enforcing strict limits in certain types of cases on the number of keywords, number of data custodians searched and more. While these restrictions curb discovery overkill, they may also inevitably inhibit the exploration of sufficient detail to ensure discovery of all relevant information.

What's needed is not fewer keywords, but smarter searching. The application of the following parameters within an e-discovery search can dramatically reduce hit lists while ensuring result relevancy:

  • Exact word/phrase matching
  • Case-sensitive matching
  • Whole word (only) matching
  • Begins-with, ends-with matching
  • Wildcard matching

Another advanced search capability, "search patterns," similarly aids e-discovery by finding matches to patterns, such as XXX-XX-XXXX to highlight Social Security numbers in a document. Coupled with viewer-based redaction, configurable search patterns make short work of such common e-discovery tasks as redacting PII (personally identifiable information) for the production phase.

Discovery searches can be streamlined even further by the passing of pre-loaded search terms from search engines such as Microsoft FAST, DTSearch, LuceneSolr, and others into a document viewer's search facility. The ability to search on a pre-loaded list of terms via a JSON (JavaScript Object Notation) object saves time, reduces the likelihood of user error and facilitates multi-document searches for large-scale e-discovery projects.

The Viewer Makes the Difference

Perversely, just as courts are trying to rein in the scope of e-discovery requests, they are inadvertently broadening them by requiring the production of metadata.

For example, in United States v. Tutt (2013), the court partially granted the defendant's motion for a subpoena seeking production of the arresting officers' personnel files and disciplinary records, including the metadata associated with an arresting officer's report. The defendant wanted the metadata to confirm the time that the report was written, to test claims made by the officer.

No matter how well-automated, every e-discovery process requires expert human eyes at multiple points, from scoping to production. But the growing likelihood of requests for metadata discovery is the death-knell for "petrification"—the conversion of all documents to TIFF format to make them easily viewable through legacy viewing tools and omitting the metadata in the process.

The most sophisticated document viewing components available for incorporation into e-discovery solutions today can display many different document and image file types—hundreds, even—from their native files, making the full text available to searches.

When this native-format viewing capability is coupled with advanced search tools, hit highlighting, annotation/redaction and the capability to run on desktop and mobile devices, many of the roadblocks to effective e-discovery within large data stores fall away. "Zero footprint" browser-based document viewing components for e-discovery run in any HTML5 browser, requiring no additional plugins or apps on any device, desktop or mobile. They free legal professionals to do e-discovery anyplace, anytime.

With luck, as such tools gain favor and become the standard, courts will acquire the latitude to demand not smaller searches, but better searches, to the benefit of all parties.

Accusoft provides document, content and imaging solutions as client-server applications, mobile apps, cloud services, and software development kits (SDKs). 813-875-7575, http://www.accusoft.com

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