Post Process

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Archive for November 8th, 2007

Computer system ‘not conducive’ to keyword search?

Posted by rjbiii on November 8, 2007

In reading 3M v. Kanbar, 2007 U.S. Dist. LEXIS 78374 (N.D. Cal. Oct. 10, 2007), an opinion posted at the Electronic Discovery Blog, we ran across this passage:

Upon reviewing the emails produced, the court appreciates 3M’s concern. However, given the assertions by Rollit’s counsel, compelling another search will not cure the problems inherent in a manual search. FN3 Therefore, the court orders (each) Defendant to sign a declaration certifying that all non-privileged, responsive documents have been produced.
The declaration shall detail what Rollit (and each other defendant) and its employees have done to ensure a complete production. Given the concern over the previous omission, Defendant(s) would do well to ensure that all responsive documents have been produced before signing. Accordingly, the motion as it pertains to compelling another search is GRANTED IN PART. The declarations shall be filed with the court within 7 days of the date of this order.

FN3: It does not seem that Rollit’s computer system is conducive to an order compelling an electronic keyword search.

(emphasis added)

I wonder to what unique attributes the court refers when it states that “Rollit’s computer system is [not] conducive to an order compelling an electronic keyword search?” There is no elaboration, but I would love to see what factors convinced the court of this…

Posted in 9th Circuit, Discovery Requests, N.D. Cal., Search Protocols | Tagged: | Leave a Comment »

Case Blurb: L-3; Elements of Spoliation, 11th Circuit

Posted by rjbiii on November 8, 2007

“‘Spoliation’ is the ‘intentional destruction, mutilation,alteration, or concealment of evidence.'” Federal law governs the imposition of spoliation sanctions in this case, but state law may be consulted to guide the Court in its analysis.

Generally, spoliation is established when the party seeking sanctions proves (1) that the missing evidence existed at one time;(2) that the alleged spoliator had a duty to preserve the evidence;and (3) that the evidence was crucial to the movant being able to prove its prima facie case or defense. Additionally, in this circuit sanctions for spoliation of evidence are appropriate “only when the absence of that evidence is predicated on bad faith. . . . ‘Mere negligence’ in losing or destroying the records is not enough for an adverse inference, as ‘it does not sustain an inference of consciousness of a weak case.'”

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 U.S. Dist. LEXIS 79572 (M.D. Fla. Oct. 25, 2007) (internal citations removed).

Posted in 11th Circuit, Case Blurbs, M.D. Fla., Sanctions, Spoliation | Leave a Comment »

Dealing with Search Criteria

Posted by rjbiii on November 8, 2007

A recent post of ours cautioned readers to be careful on formulating, and to use some method of verifying, their initial assumptions. We refer to initial assumptions with respect to EDD as assumptions on keywords, effective date ranges, and data sources that must be preserved for an electronic discovery project. has posted an article discussing keyword searches, and calls attention to one danger of not carefully considering the formulation of search criteria:

The results of a recent e-discovery keyword search should have come as no surprise. Working on a case related to a specific transaction, the attorneys requested production of all documents containing the word “buy.” Despite being cautioned against this broad search, they were reluctant to heed the warnings, and many unrelated documents were incorrectly deemed responsive. Unfortunately, it takes a $750,000 mistake like this one for some people to understand the benefits of using a strategic approach to keyword selection.

If this had been my project…well, never mind. As I have said repeatedly, it is essential for the initial assumptions used in extracting data for review to be thoroughly vetted, because the filter ultimately determines what documents the reviewer sees. Searches that are too broad cost time and money. Searches that are too narrow will miss vital data, and could cost the client even more in the long term (by skipping over helpful information or by landing them in hot water with the judge). The importance of the process of building a verifying a list should not be underestimated.

That said, keywords are not the panacea. New technologies, using concept-based ontologies and techniques continue to evolve, and will move us beyond the era of the boolean keyword search.

Posted in Articles, Best Practices, Cost of Discovery, Discovery, Duty to Produce, EDD Basics, Search Protocols, Trends | Leave a Comment »