In a litigation demand, the volume, variety and complexity of the data has changed, as well as the required knowledge and search expertise.
What’s a trillion or two gigabytes among friends?
The concern about accurate and valid searches is not new. For years the courts have been criticizing how searches are handled. What has changed is the volume, variety and complexity of the data that needs to be searched, as well as the knowledge and expertise required to search in a way that can be explained and defended. Even professionals who manage data for businesses are struggling with finding what they need when they need it and making sure it’s done right.
The exponential rise in the amount of data and the corresponding increase in the percentage of unstructured or semi-structured data, as opposed to neat columns and rows of structured data, have led to innovation in how data is processed, stored, organized and searched. The tools and processes for searching structured data, such as a traditional relational database, have proven inadequate to the volumes and lack of structure of much of the tidal wave of information that we are experiencing.
Nowhere in the realm of data management are the stakes higher and more starkly apparent than in responding to litigation discovery and regulatory enforcement demands for data. As the challenges posed by the volumes and unruly nature of the data mount, the quality of data searches is coming under increasing scrutiny. The well-performed search is the crucial first step in reducing to massive data sets to manageable size and whose manual review would be economically prohibitive. In an adversarial context such as a lawsuit, it is likely your opponent will not simply trust that you acted in good faith or knew what you were doing. They may argue that you don’t in fact know what you are doing, that you are trying to hide something, that you are trying to avoid spending adequate resources to meet your legal obligations, or all of the above. In the warm and fuzzy world of litigation, challenging process can be an effective means of applying leverage regardless of the merits of case. Put another way, if your adversary can successfully attack how data was searched and selected, he or she can score points or even prevail without ever having to prove his or her case. In cases involving particularly poor data handling, judges may impose sanctions that effectively allow a party to win the day without having to prove the case—the presumption being that the other side withheld or destroyed evidence supporting the claim.
For the most part, the methods that lawyers use to search for data is based on a limited understanding of how searches work, how they can go wrong and what tools are available to make their lives easier. The lack of expertise in this context can be a recipe for failure.