Huron Legal Q&A: Are E-Discovery Search Terms Still Viable?

E-Discovery Expert Southerland Addresses How Lawyers Can Use Search Terms Effectively in Litigation

CHICAGO--(BUSINESS WIRE)--The introduction of new document review technologies is changing the way law departments and law firms approach litigation – and raising questions about the continued viability of search terms in e-discovery. In this Q&A, Carolyn Southerland, managing director, Huron Legal, shares her insights on the value of search terms in litigation and how lawyers can develop useful, reliable search terms for finding relevant information.

Q:	Search terms have traditionally been used in e-discovery to locate relevant information. Recently there has been some discussion about whether search terms are inadequate, and whether we should use different processes or approaches to locate relevant information. To start off, can you tell us about the questions that have been raised about the use of search terms?
Southerland:	Over the years there has been a lot of analysis in other industries, and we’re now applying search methodologies used in those industries in the legal arena. Many people involved in The Sedona Conference® and other groups that focus on e-discovery believe that newer technologies that are overtaking search terms – such as data analytics, or technology assisted review (TAR), or computer assisted review (CAR) – will yield better results, both in terms of precision of locating potentially relevant information and the amount of potentially relevant information that is recalled or available for review, as compared to the search term process.
Q:	So are search terms still a good option?
Southerland:	I think they are. It depends on the nature of the litigation: big versus small, both in terms of dollar amount and perhaps amount of data. Depending on the circumstances, data analytics can be fairly expensive, and much litigation that we deal with now is actually on the smaller side. I like to think of analytics, TAR or CAR, search terms, and other such tools as arrows in a quiver: you might pull out one arrow for a certain target and another arrow for a different target. However, it is important for people to give serious thought and consideration to search terms – they shouldn’t just pull them out of thin air. For search terms to be viable, useful, and reliable in litigation, there needs to be a mechanism for testing the viability of those search terms and really looking at them from an analytic standpoint.
Q:	What should the process be to develop search terms that are the most viable and useful for finding relevant information?
Southerland:	I think it needs to involve the lawyers who are familiar with the case. It often should involve someone from the client who is familiar with the client’s “language” – acronyms and other aspects of their business that outside counsel may not be as involved in. And then it’s useful to have someone else from the outside – a consultant, if you will – who is familiar with the way search works in the tool you’ll actually be using to conduct the search to assist with giving some examples of how search terms will operate in that environment. For example, lawyers like to do “wild card” searches, using asterisks or exclamation point extenders like they use in Lexis and Westlaw searches. But often that will produce some unintended consequences when searching a company’s data.
Q:	Is there anything else to take into consideration in terms of the process for developing search terms?
Southerland:	The other thing you have to contemplate when developing search terms is working with the other side and being fairly transparent about it. For example, you can use the Federal Rules “meet and confer” process or, on your own, sit down and talk with them about search terms you want to use or terms they may want to use. In that way, your process will be more defensible, a judge will be more amenable to hearing you and, in fact, you may foreclose claims by the other side that you haven’t conducted an adequate search.

If you are interested in speaking with Carolyn Southerland or another one of Huron Legal’s experts on legal market trends or other issues impacting law departments and law firms, please contact:

Jennifer Frost Hennagir
312-880-3260
[e-mail]

Jenna Nichols
312-880-5693
[e-mail]

About Huron Legal

Huron Legal provides advisory and business services to assist law departments and law firms to enhance organizational effectiveness and reduce legal spend. Huron Legal advises on and implements strategy, organizational design and development, outside counsel management, operational efficiency, and discovery solutions, and provides services relating to the management of matters, contracts, documents, records, digital evidence and e-discovery. Huron Legal is not a law firm; it does not offer, and is not authorized to provide, legal advice or counseling in any jurisdiction. Learn more at www.huronconsultinggroup.com/legal or follow us on Twitter: @HuronLegal.

About Huron Consulting Group

Huron Consulting Group helps clients in diverse industries improve performance, comply with complex regulations, reduce costs, recover from distress, leverage technology, and stimulate growth. The Company teams with its clients to deliver sustainable and measurable results. Huron provides services to a wide variety of both financially sound and distressed organizations, including healthcare organizations, Fortune 500 companies, leading academic institutions, medium-sized businesses, and the law firms that represent these various organizations. Learn more at www.huronconsultinggroup.com.