The mandate for a just, speedy and inexpensive resolution of disputes set forth in Rule 1 of the Federal Rules of Civil Procedure is increasingly challenged by the volume of electronic information now common in litigation. As a consequence, methods used to manage it are receiving closer scrutiny from the bench. Some judges are signaling their expectation that members of the bar—whether solo practitioners, in-house counsel, senior litigators or corporate lawyers at white-shoe firms—demonstrate professional competence in dealing with electronic information. The not-so-subtle message for counsel? Failure to understand the basics of their clients’ data environments may constitute incompetence, if not malpractice.

Expectations from the Bench

Consider the following decisions—each with their own digital twist on “the search problem”—that are fast becoming classic examples of problematic “attorney-data” relationships:

• In re Fannie Mae Securities Litigation, in which nonparty Office of Federal Housing Enterprise Oversight was sanctioned for late production of privilege logs after a keyword search to which it agreed retrieved 80 percent of the agency’s e-mails, costing the agency $6 million (over 9 percent of its entire annual budget) in search and review costs.
• United States v. O’Keefe, in which Magistrate Judge John Facciola grappled with a challenge by the defendant regarding the adequacy of a keyword search, noting that the sufficiency of search terms “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” Judge Facciola concluded that “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”
• Victor Stanley, Inc. v. Creative Pipe, Inc., which resulted in a privilege waiver when counsel was unable to explain either its expertise or the processes used to search the document collection and test the effectiveness of the approach. Magistrate Judge Paul Grimm expressed the expectation that counsel be able to explain all aspects of the searches used, including the rationale for the choice, the qualifications of the search developers, the sophistication of the search methodology, and how the results were tested to ensure that the search was well implemented, reliable and appropriate.
• Qualcomm, Inc. v. Broadcom Corp., in which Magistrate Judge Barbara Major held that both Qualcomm and some of its attorneys committed misconduct in their failure, among other asserted errors, to conduct “obvious” e-mail searches on an issue central to the case. The court prescribed serious consequences for counsel—including a trip to the ethics committee and an order to participate in remedial training to prevent similar events in the future—which the judge hoped would “establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena.”
• William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., in which counsels’ lack of knowledge and communication regarding search terms and methods prompted Magistrate Judge Andrew Peck to issue “a wake-up call to the Bar” emphasizing “the need for careful thought, quality control, testing and cooperation” in crafting searches.

The judges in these cases make it clear that the increasing complexities of electronic information require upkeep in the knowledge and technical skill of counsel. At a technology New York program earlier this year, Judge Facciola, who speaks often about e-discovery, criticized the lack of technical competence and collaboration of most attorneys. He urged that “lawyers must educate themselves about technology or retain the people who have those skills before making representations” and even suggested that there may be a need for a national certification system for attorneys to demonstrate their technical competence. This could serve to allay the potential ethical dilemma of the uneven playing field created when technically savvy counsel come head to head with less well-equipped counterparts.

At the very least, counsel should go about understanding their clients’ data environments the same way they do their businesses when handling any litigation: by learning the vocabulary, goals and logistics in order not only to have a meaningful conversation, but also to deliver sound advice. Technical experts may need to be called in at some point, but without a fundamental understanding of their clients’ data environments, counsel run the risk of being unable to make reasonable judgment calls about how best to pursue a case, both from a strategic and evidentiary perspective.

Search as a Discipline

Importantly, the recent decisions call for counsel to understand not only the discovery implications of electronic information, but also something about the search process. Search, or “information retrieval” in academic parlance, is a well-established field of study involving multiple disciplines. Both inside and outside the courtroom, judges have discussed the importance of search competencies and of counsel’s ability to present the search process clearly to the court. While counsel may feel it isn’t their job to be information retrieval experts, it is no longer professional—nor likely defensible—to remain completely in the dark.

Until recently, information retrieval in legal discovery has mainly involved “keyword” search—a very blunt instrument for culling a data collection for review—and agreeing to a keyword list with the other side has seemed to be the easy route to fulfilling discovery obligations. But keyword search has many shortcomings, especially when the keyword list is agreed on without sufficient understanding by either side of what the data collections may contain. In fact, literature such as the landmark Blair and Maron study An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System has shown that manual review assisted by Boolean search only retrieved about 20 percent of relevant documents. As officers of the court, attorneys have a professional obligation to make a reasonable effort to locate and produce responsive material—i.e., to do discovery properly. This means that they ought to know where responsive information might be located, as well as have a plan that may actually identify and retrieve it.

Not only must the legal community evolve by honing its technical expertise, the changing electronic world also requires an evolved ethical sensibility, which clients and the court have a right to expect. This means an increased awareness of the ethical implications of failing to employ appropriate search methods and processes for collecting, reviewing and managing electronic information. It may even mean that lawyers will have to take a hard look at the role their own firms play in the document review process. Alternate methods for the search and review of documents may mean a revenue shift as law firms spend less time on document review and more time where it counts: on providing substantive advice to their clients.

In addition, lawyers need to look again at the way their firms relate to counterparts in litigation. In the true pursuit of the crux of a case instead of the mechanics of its execution, effective management of electronic information may require cooperation rather than contention among parties, a paradigm shift that is gaining momentum as more e-discovery complications make their way to the bench.

Guidance from TREC and The Sedona Conference

The good news is that research and information on these matters is becoming more widely available through the efforts of organizations such as The National Institute of Standards and Technology’s Text Retrieval Conference (TREC) and The Sedona Conference. TREC’s Legal Track subgroup provides an open platform for evaluating and benchmarking search methods specifically in the context of legal discovery. It has been conducting yearly studies since 2006 and has attracted significant participation and attention from the legal community. (See http://trec-legal.umiacs.umd.edu/.) TREC Legal Track’s efforts have the potential to raise the bar for counsels’ awareness of search methods, providing much needed guidance in using the proper approach for a particular task.

On the process front, The Sedona Conference, a nonprofit legal think tank, promotes dialogue in the legal community about the challenges raised by electronic information (among other things) and provides standards and practice recommendations that attorneys and jurists alike are coming to rely on. (See http://www.thesedonaconference.org/.) The recently issued Sedona Conference Cooperation Proclamation is a proactive attempt to break through the e-discovery morass that weighs down the judicial system by developing an awareness of, and commitment to, the need for cooperation in civil discovery. Cooperation is of vital importance, but it will only lead to an effective result when coupled with the appropriate competencies.

In Pursuit of a Working Knowledge

The massive volume of electronically stored information that businesses create each day and the way they manage it has significant implications for the legal profession. Representing clients competently means that lawyers need to possess professional skills that include a basic understanding of how electronic data may be implicated in their matters. This means more than just keeping up with the changing rules of electronic discovery. It means having a working knowledge of electronic information and the most effective ways to search, retrieve and review it.