Daegis, The eDiscovery Company, with the help of a distinguished group of experts, treated Legal Tech New York attendees to an enlightening set of discussions on ediscovery search and data analytics. The audience included legal professionals, IT executives, IT research analysts, Wall Street investors, and Daegis customers.

CEO Todd Wille began the discussion when he spoke to customers and investors about the strategic importance of integrating archiving with ediscovery capabilities to drive additional costs out of the search and review process. Wille was followed by Daegis founder, Kurt Jensen, who described how evolving user business models and requirements are changing the way clients want to engage as they seek more governance and control over their information. Jensen also emphasized that the solution will provide clients with “bi-directional” access to their data, whether in the firewall or hosted, and will provide validated legal search that results in controllable document review costs.

Jensen continued, "The intent and goal of a search necessarily dictates its execution. For example, the burden of validation and accuracy for an Internet query is far different from that of a litigation search. Specialized technology, processes and expertise are required to ensure that the search in question meets the level of potential scrutiny it can reasonably expect to undergo."

The Daegis panels that followed included representation from three highly litigious industries -- pharmaceutical, utility, and legal -- as well as experts from Daegis including:

• Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz,
• Gene Eames, Director, Legal Search & Data Analytics, Pfizer,
• Sam McCollum, Manager, Strategic Information Management, ENMAX Corp.,
• Doug Stewart, Director of Technology, Daegis,
• Ann Marie Gibbs, Director Litigation Consulting, Daegis (Moderator),
• Rudy Rouhana, Director of Product Marketing, Daegis (Moderator).

NOTE: Readers should keep in mind that the following comments reflect the opinions of panelists who agreed to disagree on several points.

The first panel, The A to Z Guide to Search, focused on dispelling the myths about defensible legal search as well as clarifying definitions and offering recommendations to practitioners on a deceptively complex topic.

Panelist insights and recommendations include:

• More than anything, organizations need a defensible plan around ediscovery activities. The ability to “Tell a Story” is key to gaining a court’s acceptance of a process and demonstrate good faith.
• Ediscovery search platforms that combine human and artificial intelligence capabilities, collaborate and learn through an iterative process are potentially “game changing" for attorneys looking for responsive documents & for fast tracking review decisions even as the debate continues regarding their defensibility in courts.
• Validation, sampling and testing are done in concert with review in order to determine whether data is responsive or not.
• Classification is fraught with problems downstream if no substantive thought is given to keyword selection or follow up with further analysis to determine if a review set is over or under inclusive. Validated search is key.
• Be aware of search intent as a precursor to any type of search, and be aware of the tools you use.
• There needs to be a balance between recall and precision.
• "Judgmental sampling" that demonstrates a "reasonable" process may be good enough for courts but carries no guarantee. Meanwhile, random sampling is used as a way of ensuring no bias has influenced search results. Ultimately, choose the sampling method that suits the situation.
• In the absence of standards & guidelines for legal search reasonableness, good faith and proportionality are critical.
• When search terms are determined at collection time, it would be wise to consider their impact on attempts to re-collect and create an iterative process. You can only narrow the precision of the original search, not improve on its recall.
• Disintegrated ediscovery solutions add cost if re-collection is necessary vs. using ediscovery solutions that are integrated with an archive.

The second panel,Topics in Data Analytics and Legal Search, focused on

• Measuring Results: Precision and Recall,
• Achieving Proportionality and Defensibility,
• Validation and Cost Containment Through Data Analytics,
• Supporting Legal Opinions and Industry Best Practices,
• Implementing Data Analytics: The Process.

Panel findings and recommendations included:

• Consider Search Intent. All searches are not equal & vary based on where the search is introduced in the EDRM model (i.e. collection time vs. processing or review) and the potential legal consequences.
• Legal should develop a story and process, especially around high legal consequence search. Low consequence searches for knowledge management, exploratory search, and review efficiency likely require less scrutiny. High legal consequence searches include review determination and privilege search.
• Ad hoc search more suitable for research, testing, fact finding and document location, whereas process-driven search is suitable for iterative search, impact measurement, auditing, tracking, and practical sampling.
• Proportionality/defensibility considerations in the search process include: What are the possible tiered levels of scrutiny, what scrutiny and validation is required for each data source, and what does it mean in the context of the search? (refer to Rule 26(b)(2)(C)
• Legal search should include more than technology. Best practice dictates a team effort with a variety of skills and expertise. The development of search criteria should be a team approach including the legal case team, IT and those with expertise regarding search and search technology as well as any others with a stake in the process
• Information retrieval in the legal context is not a mere search engine problem, and technology alone will not solve it. It is necessary to spend time with the information set in order to understand it.(from TREC Legal Trackpresentation slide)
• Why should people do validated search? Because running unvalidated searches will possibly miss documents and perhaps add more review time and can be a colossal waste of money. Brute force is painful and rushing things can worsen outcomes.
• It is key to understand what search tool you have and what its capabilities are. For instance, does it completely search contextual content of the files, including embedded objects or hidden content?
• Process in search is critical. You need to ask yourself: Did you take the right steps? Did the process move the appropriate documents to review or is the success rate poor?
• Implementing a search process may include creating samples, determining the sampling protocol and weighting samples by date and/or by custodian.
• Validated search is an iterative process. Organizations need to test search criteria in collected documents and external sources and modify search based on findings.
• Communication throughout the team is key. Even the best law firms have problems with lack of communication and often do not understand the ramifications of their actions.
• Having a defined process for search and analytics, communication lines open between the players, and technology that supports all the necessary activities can only improve the overall cost equation and the chances of a more favorable outcome in court.

Bottom Line

Not all search tools are intended for or work well for ediscovery. Developing a story, creating a process that is defensible and supports validated search and selecting the appropriate tools to support the ediscovery lifecycle are all critical to managing litigation support activities. IT and legal professionals must understand the capabilities and limitations of the ediscovery tools they have at their disposal and not expect a single tool to meet all needs.

Ediscovery is an iterative process supported by technology and driven by the judgement of experts and practitioners who understand how to meet the unique requirements of their clients or organization based on environmental factors, urgency of specific matters, cost constraints, and the viability of their approach.

Action Item: IT and legal need to determine if their ediscovery search process supports best practices to ensure defensibility and the best interests of their organization. If expertise does not exist internally, information governance policy should dictate that organizations seek the advice and support of outside experts.

Footnotes: Daegis and Unify(UNFY)merge