Shapiro, Lifschitz & Schram

“They really care and provide a sense of comfort.”

Marc Duber – Executive Vice President and Chief Operating Officer, The Bernstein Companies

E-Discovery Authority casts doubt on use of keyword searches and other in-house self-collection processes

Companies in litigation are often tempted to conduct part or all of the electronic discovery process in-house in an effort to achieve cost savings.  It is a fact, some decisions to let internal IT personnel handle the brunt of the collection and/or processing phases have resulted in significant savings in the litigation budget.  However, in light of e-discovery authority Judge Scheindlin’s recent discussion in National Day Laborer Organizing Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., such decisions and efforts to bring e-discovery in-house are now likely to be met with doubt and a potential order to “re-do”. 

In the case, Judge Scheindlin, known for pioneering new electronic discovery obligations in Zubulake and Pension Committee, ordered that additional electronic searches be conducted by the defendant because, among other deficiencies, they failed to a) follow-up on obvious leads; b) search archived data storage locations; and c) adequately describe the extent of their searching procedures.  In one “absurd” instance, the court noted that a defendant had interpreted a data custodian’s failure to respond to a request for records as proof that there were no responsive documents in existence.

This decision, and similar legal precedent to come, highlight the dangers of self-collection in the electronic discovery context.  The Court concluded that it could not “simply trust” defendants’ representations regarding collection of its electronically stored information because many of the defendants failed to “record and report the search terms that they used, how they combined them, and whether they searched the full text of documents” and therefore failed to establish that the searching was adequate in the first place. 

The Judge also stressed the insufficiencies in simple keyword searching – “[e]ven in the simplest case . . . there is no guarantee that using keywords will always prove sufficient.”  Judge Scheindlin noted that courts and litigants must move “beyond the use of keyword searches” and “rely on latent semantic indexing, statistical probability models, and . . . iterative learning”, also known as predictive coding, to “significantly increase the effectiveness and efficiency of searches.”

Judge Scheindlin has issued yet another direct warning to future litigants that all parties participating in discovery must guard against inadequate and undocumented in-house search processes and learn to use the latest technologies to perform proper electronic discovery searches. 

As it stands, there is no court in the country currently barring the use of in-house personnel to search and collect data for discovery purposes.  And, in some situations, it may be the correct decision if carried out appropriately.  But, taking into account new and emerging document management and search technology, and the increasing skepticism of self-collected data, companies deciding to conduct e-discovery phases in-house must at least consult with an attorney specializing in electronic discovery and data management matters, such as an ESI Counsel or E-Discovery Attorney, in order to avoid a costly “re-do” order or other evidence spoliation sanctions.

Did You Know . . .

Members of the SLS trial group have tried in excess of 50 jury trials and 75 bench trials?

The SLS construction group has worked on sports stadiums across the country including Orioles Park in Baltimore and Paul Brown Stadium in Cincinnati?

The SLS construction group has worked on power plant projects across the country?

In 2007 SLS was selected for an Honorable Mention as one of the Best Places To Work in Washington DC?

Ron Shapiro, Steve Schram and Judd Lifschitz have all been selected as SuperLawyers by Law and Politics?

The SLS office building is an historic townhouse constructed in the late 1800s?

SLS has been selected by Martindale-Hubbell as a Preeminent Law Firm?

SLS trial lawyers have argued appeals in the U.S. Circuit Courts of Appeal for the 4th, 5th, 9th, D.C. and Federal Circuit?

SLS trial lawyers have been lead trial counsel in cases in Arizona, California, District of Columbia, Florida, Louisiana, Maryland, New Jersey, New York, North Carolina, Oregon, Texas, and Virginia, - to name just a few?

Virtually all the cases that SLS trial lawyers mediated have been favorably settled at mediation?

The transactional group at SLS was lead counsel on one of the largest, most complex mixed-use projects in downtown Washington, DC involving 4 lenders and 6 property owners?

In appreciation for the outstanding efforts of each of its employees during 2007, SLS gave everyone (attorneys, paralegals, and staff) a 4 day/3 night expense paid trip to Key West, Florida?

The transactional group at SLS has represented tenants in more than 200 retail leases in the Mid-Atlantic region?

Every attorney in the transactional group at SLS has at least 15 years experience?

The transactional group at SLS has represented developers in the purchase, construction, financing and/or sale of more than 75 multi-family apartment projects?

The transactional group at SLS has represented real estate investors and developers with respect to property in Pennsylvania, West Virginia, Delaware, Maryland, the District of Columbia, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, Tennessee, Michigan and the U.S. Virginia Islands?

Attorneys in the transactional group at SLS have represented eight national banks in commercial real estate loans?

Attorneys in the transactional group at SLS have represented the FDIC, the Resolution Trust Corporation and several banking institutions in loan workout transactions throughout the Mid-Atlantic region?

The transactional group at SLS has represented homebuilders and commercial real estate developers in work-outs of individual loans and also for work-outs of large portfolios involving dozens of properties in several states?

The trial lawyers of SLS have numerous reported decisions to their credit?