With time as a hot commodity and the industry gravitating towards fixed-fee arrangements, hourly billing limitations, and an overall conservative approach to legal spend, it is important to be efficient in all areas. Specific to discovery, combining various data search methods helps create a refined set of records for review without overextending your team’s capacity and sanity.
The key is to first understand what e-discovery search methods are available, then conduct the review based on effective communication, clearly defined instructions, and ongoing feedback. Here are some best practice e-discovery search tips and initial review must-dos that will streamline your production process from the beginning.
Before you dive into the e-discovery process, develop a general understanding of what information should be produced, what items you specifically need to address within the Request for Production, and identify the main custodians. This process will establish much-needed search parameters, thus helping you locate relevant data that anchors your client’s position while providing all pertinent documents to the opposing party.
Utilize Advanced Keyword Searches
Keyword searching is similar to a Google search across a defined set of data. In discovery, the goal is not always to find all the matches to a keyword, but to refine those records based on sets of terms specific to the request. This is where advanced keyword searching becomes useful. Advanced keyword searches such as nesting terms, wildcard searching, and proximity searching are designed to simplify complicated search requests, helping to cull the data from behind-the-scenes.
- A nested set of terms may be the combination of matching ALL words in a group such as Tracy, Bob, and sales meeting along with finding at least one word from another group such as contract, vendor, or agreement. The system will interpret this request as (Tracy, Bob, AND ‘sales meeting’) AND (contract, vendor, OR agreement).
- A wildcard allows the system to find all matches with additional characters. An example may be to search for the word “fish” with a wildcard (e.g. fish*). This wildcard search would return any records where the terms “fish”, “fishing”, “fisherman”, and other variations of the word “fish” exist in the text.
- A proximity search allows you to look for two words within a particular range of each other in a record. An example may be “smoking” within twenty-five words of “tobacco” (e.g. smoking w/25 tobacco).
A look at metadata is an essential part of best practices when conducting a document review and production. Think of metadata as the Dewey Decimal card for a digital item whether that item is a document, a photo, or even a phone call. Metadata is simply the properties associated with a piece of electronic data. It exists within every digital item and a physical device such as your laptop or smartphone.
This information is extracted and displayed in fields within a discovery review tool. By searching using metadata, you can filter or cull down records created by a particular author, within a particular time frame, or sent/received between various custodians.
Many systems have the ability to utilize tags; it’s like putting a sticky note in a book or a stack of documents. Tags can be manually added to a record, but some are automatically generated when records are loaded into a software platform. You can use these tags as a way to include or exclude large sets of similar documents very quickly. For example, you could use an automated tag to exclude all Protected Personal Information (“PPI”) from the search. In this case, the system will place a tag on any document where it detects something such as a social security or credit card number.
There are various types of analytics used across the legal discovery space but the functionality is the same. Analytics insights are aggregations of information that the software creates in order to group similar records together based on who, what, when, and where, whether it be driven by the technology or by the user. This can be a great utility for excluding or including records into a review with only a few clicks of a mouse. As an example, analytics insights may indicate a high volume of records based on a particular location referenced or reveal a person’s name who otherwise would not be a known custodian.
Creating the Review Set: Document Review Recommendations
Combining various search methods allows you to create a refined set of records for review. The goal of utilizing one or more of the search methods is to reduce the total amount of records that are needed for review by excluding non-matching items and including possible responsive records. An advantage in today’s software environment is the migration to pure cloud which provides real-time combination of your various search methods regardless of how many records you have to search. Once you have gone through the process of finding the documents you need to review, it is time for your team or an outside team of attorneys to conduct the review. One of the most crucial components of the review is effective communication.
Given the complexity of litigation, there are countless moving parts to each review. Regardless of size and scope, it is important to establish clearly defined instructions and provide ongoing feedback throughout the review process. Communication must be fluid, clear, and consistent on all levels. From determining the client’s budget and instructing the review teams, to providing progress and timeline reports for lead counsel, consistent and timely communication is key for a successful review. Begin by establishing a detailed, written protocol that vocalizes how documents should be tagged. If the review is happening in-house, this may be minimal; however, if the review is being outsourced, then the protocol will need to accurately explain the case and parties involved. Give the team all of the background knowledge needed to correctly tag documents during the review. Each review will vary in type and detail but some information will always be concrete.
Conflicts, review instructions, deadlines, questions, and required metrics should always be transparent and well-communicated. Remember, stress is not an inherent part of electronic evidence production, but the process can become overwhelming without proper planning and protocols. When you identify the scope of the discovery, utilize the right search methods, and develop a detailed review protocol, your team can easily stay on track and well-organized from beginning to end.