I was asked an interesting question by Jerome Wendt, DCIG President and Lead Consultant a while back. Jerome inquired, “Is there a list of approved files organizations can exclude from their list of search candidates that are common files and will never contain any information relevant to a legal search?” This was an interesting question for several reasons, mostly because nothing immediately came to mind.
I then set out to try and determine if such a list existed and have come to the conclusion that if such a list does exist it isn’t widely known and I certainly could not find it. As I continued to try and answer this question, I realized that if I was having this much trouble, chances are that most people will have the same frustration.
One of the most significant areas of eDiscovery is performing a relevant keyword search of data to produce the proper documents as mandated by eDiscovery requests. This collection of ESI (electronically stored information) holds particular importance as produced documents will go through a review process prior to producing these to opposing counsel. As data continues to grow within organizations eDiscovery costs continue to rise therefore it is extremely important to have a robust search that reduces non-relevant information during a search.
Collection of electronic data should be comprehensive. But based on recent eDiscovery failures involving keyword searches such as the recent case of Active Solutions, LLS and Southern Electronics Supply, Inc. v. Dell, Inc. as was highlighted by DCIG, this process is difficult for even large companies with greater resources such as Dell to achieve.
Companies must take a consistent approach to meeting these mandates and a company’s keyword search process should not negatively impact the eDiscovery procedure as it moves forward. Dell’s case also highlighted the importance of a proper search of a company’s e-mail and the court’s increasingly impatient stance toward inadequate searches of email during eDiscovery. So some areas to consider for keyword search moving forward are:
- Be specific in your search. A well thought out word search reduces the amount of irrelevant “hits.” For example, using short words such as “mark” will produce numerous hits on words such as “trademark” “benchmark” etc., if you want to eliminate this then try more specific word searches, or phrases.
- If possible avoid generic industry words. If you are doing a search at a hospital, words such as “patient” “transfer” and “emergency” will be found in abundance and may hinder rather than help in your search efforts.
- Search for user created files types. Search for user created file types such as “rtf”, “doc”, “xls”, “pdf”, “txt”, “html”, etc. and avoid known files that are not relevant to your search. The National Software Reference Library is a huge repository for known traceable software and can be very helpful in narrowing search results.
Using email archive products such as Estorian’s LookingGlass can provide companies a means to index and search email and give you accurate results. By accelerating the email search process and reducing a huge volume of data down to only relevant information, it significantly increases a company’s ability to perform early case assessments of the data thus saving costs.
The importance of ensuring a proper approach to email keyword searches is clearly demonstrated in Dell’s case but it applies to almost every aspect of eDiscovery. Email’s continued importance in eDiscovery processes provides a challenge to companies that only through the use of technology such as LookingGlass and proper keyword search techniques can overcome. The courts are consistently showing their unwillingness to accept poor search results and companies that present these types of unsatisfactory results run the risk of the courts demonstrating their frustration through fines and sanctions on the offending party.