To the extent that you can eliminate information that is clearly not valuable early, the better off you are. Imagine you have a pyramid: You can almost always talk people out of asking for all the documents at the bottom of the pyramid.
Tombleson: The judge in a UK case got into the granularity of the search terms. And the judge suggested that the word “delay” be included. Controversial, because of the huge number of false positives. [I checked a PST I started two weeks ago — 37 emails out of 2,400, which would be 37,000 emails out of 2,400,000, I think, right? That’s a judge in favor of paying reviewers.]
Paskach: None of the indexing/retrieval engines are perfect, just as no person is perfect. Yet people seem susprised that they might miss a few. What’s the best way to deal with that? How do you help people understand it’s an art?
Hedges [excerpts/gist]: I have colleagues think you never disclose anything to the other side. I happen to think in the Sedona Cooperation Proclamation that you have to disclose facts. There is no basis in the world not to disclose facts. Having said that, if you’re doing electronic review — why choose a tech, what did you do — Victor Stanley notices that this isan iterative process. I think transparency is very important.
Tombleson: It’s so important to have an audit trail.
Paskach: What about specialized methods like Latent Semantic Indexing, Linguistic Analysis? Anyone doing that who is willing to admit it?
Smith: We are using all terms and all technologies and try to reduce and pull things. “The biggest problem is ‘there’s cake in the kitchen’ that goes to everybody.” At the end of the day, anything going out to opposing counsel, want to have somebody’s eyes on.
Tombleson: We see them being used for speed of review. [Describes early case assessment.] Second is where not to use search terms, effective in investigations/foreign corrupt practices. Useful where might be code words.
Hedges: Search terms are becoming an obsolete technology. Lawyers are anal retentive. It’s a loit easier to use a word. Lawyers may not understand. Look at O’Keefe. Lawyers come in and argue about search terms, and Facciola says neither of you know what you’re talking about. Your laypeople, as am I.
Smith: I don’t have a lot of clients who want to be early adopters.
Witczak: Doesn’t matter what tools you use. You need to realize that the cheaper tools may be slower. the tools that say they can get through the data that much faster. You can’t look at the tool alone — you have to look at the whole process.
Hedges: If ytou’re doing it right, you are probably upfronting some discovery costs. These are costs that you will spend eventually. Much better to spend it upfront to get an agreement.
Paul Tombleson, Lead Partner, KPMG LLP
Mark Smith, Associate, Winston & Strawn
Ron Hedges, former U.S. Magistrate Judge
Gregory Witczak, Vice President, directory of eDiscovery, Lehman Brothers Holdings
Moderated by Chris Paskach, National Partner in Charge, Forensic Technology Services, KPMG