E- Discovery: 10 Strategic Steps for Defensible Search
once in a while I receive an e-mail from someone wanting advice on how to conduct a patent search
to determine whether his idea has already been registered. Many people are sorely disappointed
to learn after putting a lot of work into what is truly an original idea for them only to discover
later that a patent has already been issued for the concept. The U.S. Patent and Trademark Office
(USPTO) has some pretty good tools for research (see "How
to Conduct a Preliminary U.S. Patent Search"), but in order to be successful you really need
to have a proven, methodical strategy for using those tools. Simply entering a few keywords rarely
- if ever- results in a sufficient effort. Mr. Tino Kyprianou, guest author for IMS ExpertServices,
has written an article titled, "E-
Discovery: 10 Strategic Steps for Defensible Search" that provides some advice on how to proceed.
- Kirt Blattenberger
Reprinted with permission.
E- Discovery: 10 Strategic Steps for Defensible Search
MSc., Guest Author
Add comments Feb 052013
E-Discovery in litigation today presents a number of challenges in creating
a defensible, efficient, and iterative search protocol. A defensible keyword search protocol
should contain, at a minimum, the following ten strategic steps:
Define the data you are looking for and determine where it is located.
to first define and identify the potentially relevant documents that will be needed for a request
of production (RFP). However, defining the universe of required documents is not necessarily
an easy task. The attorney should know which electronic devices may contain the data, such
as network servers, computer workstations, laptops, cellphones, etc., as well as the custodians
of the data, retention policies, and record keeping practices. To ensure compliance and
efficiency in RFP and to reduce e-discovery costs, maintain an electronically stored information
(ESI) "Data Map" that identifies and details the flow of data and how it can be retrieved.
2. De-duplicate &
Simply put, de-duplication replaces duplicate data on a disk with references
to a shared copy. When duplicate data is detected, the instance is referenced back to the saved
shared copy. Thus, only one copy of similar documents is stored. The search will therefore be
faster and more cost efficient.
Filter out any unnecessary file extensions.
For example, exclude sound files, design files, and any unresponsive system files. Exclude
custodians not relevant to the case, time periods that are outside the scope of the RFP, and identify
any other parameters that will help reduce the volume of data to be searched.
Understand the limitations of technology.
Know what e-discovery technology tools
are capable of (and what they are not). Understand how fast the tools work; how data is
captured and indexed; whether embedded data can be searched; whether the tools have the
ability to perform searches across metadata or the ability to search important file formats;
and any other essential functions in the overall discovery process. Determine whether the processes
are understandable and defensible in court.
Keep in mind that searching tools cannot search
image format files such as faxes or pdfs/tiffs that contain no detectable textual content and
have not been previously converted for electronic search or storage via optical character recognition
(OCR’d). These documents must be identified and handled separately. Wherever possible, render
those documents searchable. Maintenance, licensing issues, available resources and capabilities
are also important factors to consider.
Consult all relevant persons.
To ensure the most relevant keywords for the search
are utilized, all data custodians and any key players in the possession of potentially relevant
information should be consulted. These persons are most likely to help create a keyword list that
will yield the most relevant results. Also, in the absence of a properly configured "data
mapping," these persons can help identify the various devices on which ESI resides.
5. Collaborate with
the other side.
Courts not only expect to see collaboration with the other side,
they welcome it. Be proactive and discuss keywords you are considering with your adversary in
an effort to reach mutually acceptable keywords and search methodology. Doing so will save you
time and help avoid arguments about irrelevant searches. The collaborative process
might also help you identify search terms that you haven’t previously considered.
6. Address synonymy,
misspellings, word variations, and ambiguity.
Looking for words with identical
or similar meanings, common misspellings, and word variations are helpful tools for finding specific
documents. The human language is full of ambiguity and variations. Make use of available tools,
such as the website www.dumbtionary.com, which can be
used to find the most common misspellings for a given word. Similarly,
www.wordhippo.com can be used to find words that are synonymous.
Be aware that instant messaging and text messages often contain slang known as "txt-speak." The
key players involved can help identify some of this language commonly used in their environment.
7. Utilize statistical
The Sedona Conference expressed the position that the document review
process is well suited to the application of statistical sampling to improve quality and reduce
costs. In the case of search terms, it’s desirable to run them against a statistical sample of
your data set and the custodians that are most representative of that sample. In utilizing statistical
sampling, however, use care in the actual selection methodology used, especially if the ESI collection
is incomplete. Sampling cost considerations should be evaluated against the costs of more extensive
document review due to inefficient keyword selection.
Review the results to determine whether the number of relevant
documents returned is satisfactory and identify any files that are not searchable, encrypted,
etc. Eliminate any noise hits, and refine and tweak your keywords to increase the potentially
responsive documents and eliminate non-responsive ones. Test, retest, and make refinements as
you go along.
Assurance: Review unresponsive documents.
Courts demand quality assurance
on keyword searches to ensure all necessary steps have been taken and potentially relevant documents
have not been missed. Review a representative sample of the documents deemed unresponsive
by keyword searches to confirm their status. If potentially responsive documents are
found, then the search methodology utilized must be revisited.
Document your search strategy.
A defensible search strategy and methodology should
be adequately documented and the choices justifiable. As you work through different steps of the
search process, keep a log of your actions in as much detail as possible. This will help you convince
the court that the search used the appropriate terms, the appropriate data sets, and produced
the highest number of potentially responsive documents. A log will also enable you to replicate
your search process for verification, if necessary.
Finally, courts don’t require perfection
in e-discovery, but instead look for a reasonable, reliable, and defensible approach. Taking
time to craft a defensible keyword search protocol will help protect an attorney from possible
sanctions and enable him or her to offer a satisfactory methodology for finding responsive documents
Editor’s Note: What steps have you found helpful
in creating a defensible search protocol? What has worked well – or not – for you? Please feel
share your suggestions.
Biography of the Author(Read Below).
Kyprianou, MSc., Guest Author
Tino Kyprianou is Certified Computer Examiner
and Certified Fraud Examiner with twenty-five years of experience in computer forensics and
business consulting. His firm is based in Morristown, NJ and specializes in Computer Forensics,
E-Discovery and Fraud Prevention & Detection. He advises law firms, in house counsel, and
private investigators, and offers expert testimony both in criminal and civil matters. Mr. Kyprianou
is a member of the International Society of Forensic Computer Examiners, the Association of
Certified Fraud Examiners, and the Consortium of Digital Forensic Specialists.
This article was originally published in
a newsletter distributed by IMS ExpertServices™.
IMS Expert Services is the premier
expert witness search firm in the legal industry, focused exclusively on providing custom
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