The recent ascendance of technology-assisted review has been accompanied by unprecedented levels of cross-party transparency in the discovery process. This has led many to pose an intriguing question: Why has only technology-assisted review been subject to this level of transparency? With studies demonstrating that traditional search methodologies and eyes-on manual review can be unacceptably error-prone, even when carried out in good faith, why have courts not seemed more interested in checking under the hood even when these more traditional methods are used?
Straightforward term-based searching is still one of the most powerful tools in a litigator’s kit, and manual review will always have a place in the discovery process. But a number of recent cases show that courts are, in fact, becoming more comfortable ordering parties to reveal details of their traditional discovery processes that may have formerly gone unchallenged. In a particularly interesting order out of a U.S. District Court in Nebraska last month, Judge Lyle Storm compelled the defendant to reveal the search terms they had used to cull their own documents after the plaintiffs became suspicious of an unusually small production. The plaintiffs had no real evidence of spoliation apart from the production size (25 documents), yet they still successfully convinced Judge Storm that a more transparent process should be implemented–retroactively.
This order serves as notice that any e-discovery process can, at any point, be subject to far greater scrutiny than anything anticipated at the outset of the matter. However, adhering to the following best practices can help mitigate against any fallout, even when challenges arise unexpectedly.
- Be thorough in your ESI protocol. Giving the court real insight into how you plan to conduct discovery will help you negotiate any surprising turns of events.
- Engage search experts. Any search terms used to make meaningful cuts in a document population could become discoverable, even when that has not been agreed to upfront. Retaining someone with real search expertise will ensure that any search terms used are meeting the highest standards of defensibility. Cultivate that expertise within your organization, or involve a search consultant when the need for search terms becomes apparent.
- Implement process controls for search. If you are deploying search terms unilaterally without negotiations with opposing counsel, make sure that you have appropriate process controls in place, such as sampling from the left-behind population to make sure that unanticipated responsive documents are not being cut out of the review. This will help construct an effective defense should your search terms ever be questioned later in the review process.
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