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Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

Posted by rjbiii on March 28, 2009

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”

After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.

Lessons learned:

  1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
  2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
  3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
  4. Even an admittedly imperfect protocol, if the above elements are present, may suffice.
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Posted in 2nd Circuit, Case Summary, Effectively Managing E-Discovery, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols, The Sedona Conference | Tagged: | Leave a Comment »

The Sedona Conference: Suggested Balancing Test for Cross Border Discovery Requests

Posted by rjbiii on March 5, 2009

Ideally, determining the scope of cross-border discovery obligations should be based on a balancing of the needs,
costs and burdens of the discovery with the interests of each jurisdiction in protecting the privacy rights and welfare
of its citizens. The following factors should be considered in this balancing:
1. The nature of the data privacy obligations in the jurisdiction where the information is located;
2. The obligations of the responding party to preserve and produce relevant information in the
jurisdiction where the dispute is filed and the jurisdiction where the data is located;
3. The purpose and degree of custody and control of the responding party over maintaining the
requested information;
4. The nature and complexity of the proceedings;
5. The amount in controversy;
6. The importance of the discovery to resolving critical issues; and
7. The ease and expense of collecting, processing, reviewing and producing relevant information,
taking into account:
a. the accessibility of the relevant information;
b. the volume of the relevant information;
c. the location of the relevant information;
d. the likelihood that the integrity and authenticity of the information will be impaired by
the discovery process; and
e. the ability to identify information that is subject to foreign privilege and work product
protection from disclosure.

The Sedona Conference, Framework for Analysis of Cross Border Conflicts 34 (Aug. 2008). (Registration Req’d).

Posted in International Issues, The Sedona Conference, White Papers | Tagged: , | Leave a Comment »

Keeping it all (your data, that is) together

Posted by rjbiii on September 17, 2007

DM Review has posted an article discussing the challenges of navigating the rules of compliance on one side, and discovery rules on the other.:

Corporations were thus presented with a dubious choice, one that really wasn’t a choice at all: attempt to get the unstructured data genie back in the bottle in favor of the old paper-based world or lean heavily on technological tools to implement an infrastructure better equipped to handle both structured and unstructured data.

The author discusses the familiar issues with trying to find structure and patterns within unstructured data. Then, voila, something big happens:

the search and categorization industry grew up. After a few false starts and some premature hype, search and categorization tools became easier to use and, more importantly, started delivering better results. Search and categorization tools eventually became the unifying force of information management within many enterprises and professional service firms as they could make sense of huge volumes of data in a relatively effective fashion. Furthermore, search and categorization technology began solving particularly thorny issues such as records management, compliance and e-discovery, which went a long way toward cementing the critical role that search is playing in today’s enterprises. The following three brief case studies highlight the increasingly effective roles being played by search and categorization to resolve specific business issues.

In focusing on litigation, the article waxes a bit optimistic on the technology used for document review:

For the legal industry, time is money – literally. With associates’ billing rates exceeding $250/hour and partners’ upward of $500/hour, efficiency is critical. The challenge for law firms is that their incredibly valuable intellectual property (their work product and expertise) resides in multiple, separate repositories and applications, making information accessibility extremely difficult and time-consuming. Worse, particularly for large diversified firms bidding on new business, lawyers don’t know the full breadth of expertise living within the firm and will either spend a significant amount of time figuring this out or will simply avoid bringing in new clients for fear that the firm won’t be able to meet their extensive needs.

The solution: a search application that unifies access to all data within the firm in a single, easy-to-use interface, thereby giving access to all of the work product and expertise within that firm. This solution not only pulls information from the usual sources (file servers, databases and intranets) but incorporates highly sensitive sources (e.g., from time/billing systems and personnel records) and even external information feeds. And in order to meet the firm’s stringent ethical and conflict of interest-avoidance requirements, the system applies multiple levels of security to both the users of the system and the content residing in it. Thus, the legal industry has increasingly turned to this “Google for law firms” solution to make its practice far more efficient, thereby allowing them to raise their rates while actually improving their cost-effectiveness for clients.

Google for law firms, eh? I haven’t seen the killer app in lit support yet. In fact, many of the leading lights of law are just now beginning to acknowledge that “eyes only” review is not the most effective and accurate means of processing information out there. The Sedona Conference has released a new paper on using seach technology in the e-discovery process (download the report in pdf format by clicking here). An excellent view of the recommendations contained in the white paper may be found at e-Discovery Team.
What is certain is that technology associated with e-discovery still has a ways to come (although it has certainly progressed in the last few years). What is perhaps even more important, is that learned counsel become, well, learned. Greater knowledge of the technological capabilities and techniques, as well as familiarity with the laws of discovery procedure with regards to e-discovery, will result in much greater efficiencies and less nasty surprises for clients.

Posted in Articles, Data Management, Search Protocols, The Sedona Conference, Trends | Leave a Comment »