By Thomas Barnett
“In too many cases . . . the way lawyers choose keywords is the equivalent of the child’s game of ‘Go Fish’ . . .”
-Judge Andrew Peck
If you think searching for data in litigation has been a difficult and risky fishing expedition to date, just wait. The current tidal wave of data along with heightened scrutiny is making it even harder, and your company could find itself on the hook for serious penalties.
There’s a revolution occurring. A new world order is on its way. The old rules don’t apply and the familiar ways of doing things are becoming obsolete. Survival depends on adapting to the new challenges and understanding the tools necessary to survive. The revolution is called big data and the people responsible for managing the information and technological infrastructures of business are on the front lines.
The primary tool for survival is the ability to search for and find the data you need, when you need it, and have the confidence that your results are documented, accurate and defensible—in other words, that you’re performing valid searches. This applies to every type of query, whether for security, business operations, regulatory compliance or litigation. If you don’t know and can’t show how well your searches worked, you can’t have confidence in the data you gathered and the accuracy of the conclusions based on analyzing the data. Needless to say, a lot is at stake in getting it right.
But unlike most technological efforts in a company, when it comes to searching for data for a litigation demand or regulatory enforcement, subpoena lawyers run the show. And as various cases have shown, no matter how good the lawyers are, most lack the necessary expertise to create effective protocols for searching data and validating results. Nor do the individuals (i.e., data custodians) in possession of relevant data have the required know-how to defensibly search for and identify it.
“[M]ost custodians cannot be ‘trusted’ to run effective searches because designing legally sufficient electronic searches in the discovery … context[s] is not part of their daily responsibilities.”
-Judge Shira Scheindlin
National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency is the most recent significant legal opinion on this issue (and the body of these cases is growing). It was authored by U.S. federal judge Shira Scheindlin who has written a number of frequently cited opinions on the adequacy of e-discovery efforts, including the most well-known e-discovery case, Zubulake v. UBS Warburg. In the Day Laborer case, Scheindlin directly addressed the issue of the adequacy of searches for data and highlighted the need for being able to validate, explain and defend how data was identified and produced in response to a litigation discovery demand.
