In a litigation demand, the volume, variety and complexity of the data has changed, as well as the required knowledge and search expertise.
Everyone talks about the weather but nobody does anything about it.
Very few people would argue with the idea that you need to be able to document and explain the steps you took to search for data in response to a document demand. But as Mark Twain said about the weather, “Everyone talks about it but nobody does anything about it.” The essential elements of conducting valid and defensible searches can be summarized in five fundamental rules:
1. What you don’t know can hurt you.
Virtually all aspects of discovery involve searches. And you may be asked to explain and defend any or all of the searches you conduct. The first step in understanding what constitutes a valid search is defining what is meant by a search. Searching for data in litigation is often conceived of as identification of information within a set of data that has been collected and processed for review. But searching for data occurs at a number of different times in the course of a case. Some of the most common searches include:
a. searching for potentially responsive data requiring preservation based on the scope of the legal action;
b. deciding what data to collect for analysis;
c. filtering data for processing to best target responsive data (e.g., by date, author, subject matter, etc.);
d. searching data that has been processed for relevance to specific issues in response to a document or other discovery request;
e. searching for data that meets specific criteria for production to the requesting party;
f. searching data in preparing the case (i.e., supporting a claim or defense in the lawsuit);
g. searching data in preparation of taking or defending a deposition of an expert or fact witness.
2. Every Step You Take, Every Move You Make.
In any technological effort in data discovery you should work under the assumption that every step you take and every decision you make will be highly scrutinized and may be challenged. With that in mind, consider whether you will be able to explain and justify all actions taken in the course of managing the data in the case. This ability to document and defend is particularly critical regarding how data is searched. The search results can dramatically affect the economics of the case and, therefore, may be rigorously examined. If the search results are found inadequate, the result may be a high-profile failure—as the case law demonstrates. To be clear, scrutiny of the search process does not mean that every decision or process needs to be perfect—perfection, while admirable, is rarely if ever achieved when human efforts are involved. The legal standard is not perfection. What is required is to do what is reasonable under the circumstances. Reasonableness, however, is often in the eye of the beholder, which includes at a minimum, you, your adversary and the judge. So for the purposes of critically analyzing your efforts, you need to put yourself in the position of a neutral observer and give your process a cold, hard look. In cases with a lot on the line, you should consider engaging an outside expert to assist in creating valid and effective searches or, at a minimum, to review and assess how your searches were conducted.