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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.