E-Discovery Tip Sheet

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Winifred Barker
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1 E-Discovery Tip Sheet Further Searching Thoughts If you think about it, there is nothing really simple about searching. Computers have afforded us the comfort that, if something has been saved and we use the CTRL-F Find hotkey with the right syntax, we can find anything. Take a quote, for example: The loser, when a game of dice is done, remains behind reviewing every roll sadly, and sadly wiser, and alone. If you were looking for this quote in a bound volume of John Ciardi s translation of Dante s Divine Comedy, you would have quite a hunt before you to turn up Canto VI, Lines 1-3 of The Purgatorio. If you had a digital version, searching sadly wiser should get you there pretty briskly. That is swell if you happen to recall the exact text of this translation. That won t turn up the A. S. Kline prose translation, however: When the gambling game breaks up, the one who loses stays there grieving, repeating the throws, saddened by experience This demonstrates a couple of principles: (a) The imprecision of translation (a note for another day); (b) The potential for problems in search; and (c) An interesting intersection between Dante Alighieri, attorneys and gamblers. Like us, attorneys do not necessarily know the precise wording of what they are looking for in a corpus of documents. They have some ideas from the complaint,

2 July 2015 E-Discovery Tip Sheet Page 2 discussions with the client and preliminary discussions with opposing counsel; they may even have stipulated to a list of approved search terms. It s a starting point, but contains high potential for missing important items: The synonym problem How many ways can you express the word aircraft? In a case involving cholesterol-reducing drug Zocor, would you also find a document referencing simvastatin? And with respect to names, do we know whether Mr. Edward Smith is also known as Ed, Eddie, Eddy, Ned or Ted in addition to esmith type address names? The idiom problem If we know someone likes to dance, would we know if they tango, Charleston, or cut a rug? Did two possible subjects have a meeting or a visit? This may seem offhand, but particularly in the age of text messaging abbreviations, IMHO this aspect of search must be closely examined. The syntax problem You may one day get a list of search terms that contains connectors that you have never seen before: card game aces & jacks deal! royal +1 flush deuces /4 wild bump % raise Texas Hold em This is Westlaw Case Notebook search syntax. If you use LexisNexis Concordance, the list would need to look more like this: card or game aces and jacks deal* royal adj1 flush (within 1 word, in this order; Lexis pre/1) deuces near4 wild (within 4 words, in any order; Lexis w/4 or /4) bump not raise Texas Hold em (adjacent words infer phrase)

3 July 2015 E-Discovery Tip Sheet Page 3 The bottom line is that you need to be aware of the search syntax of the software you are using, and also what is possible using that syntax. The unindexed common word problem Going back to our quote from Dante, let s suppose that all we can recall of Professor Ciardi s translation is a game of dice. We could search for that, right? Sadly, no: in most systems, a and of are common words and not considered worth indexing. Different systems handle this issue in different ways: some do in fact index every separate alphanumeric string as a searchable word. Some ignore such words and only consider the items found in the index. Some simply fail and do not explain why. Concordance falls in this last category, but has a with the exact phrase feature in its Simple Search pane that automatically maps around noise words using its adjacency (ADJ#) operator. Using an adjacency or proximity operator, as discussed in the prior item, is generally the best policy where these types of phrases occur. The reserved word problem Search systems have terms which are applied to build or refine searches. These terms may also be items that you wish to search: WHERE is a reserved word used for setting out filtering conditions in SQL-based searching, so between that and common words set out above, a search on the book title Where Is My Cheese? will wind up being a search for Cheese. Some systems allow use of a preceding character, or enclosure in quotes, to differentiate the reserved word. I recommend testing on your intended search system before agreeing to anything. The noise word problem Sometimes the most obvious word in the case is the exact wrong one to include in a search. Consider looking for IBM in the 10,000,000-odd documents in that company s antitrust action: you would turn up just about 10,000,000 documents. When discussing an AIG matter, insurance is not apt to be very enlightening in any but the very broadest sense. You don t need to know that a case involving Exxon will probably involve oil or gas. Look for the salient issues in the case. The unspoken word problem threads become unraveled when the discussion changes tracks, to SMS message, to phone, or private discussion forum. Even if you find a response to an ed question, how can you connect it other than by date sequence? And what about a response such as Okay? Without context, it could mean anything from simple acknowledgement to approval.

4 July 2015 E-Discovery Tip Sheet Page 4 The fuzzy problem Search tools offer wildcard characters for a reason: computer searching is accurate for what is specified but lousy at inference without special help. We can clearly see that Virgil and Virgil s reference the same person, but the search term Virgil will find only the first version in most instances. This may be cured by using a multi-character wildcard (*) or a root expander (!). Sometimes Virgil might be spelled Vergil; a single-character wildcard (?) can take care of that (V?rgil). But what about a transposition typo, an address concatenation, or mangled OCR? Some form of Fuzzy Search is required here, a tool that will present items from the index that fall within a certain percentage of similarity to the specified term. From there, a reviewer would select the values that may be inferred as likely alternative spellings for the term, or simply review all results returned for a certain similarly threshold setting. The unknown unknown You don t know what you don t know. To cite Donald Rumsfeld, there are things you know about your case, things you don t know about your case, and things that you are not aware of in the slightest. In searching, you are starting on finding out (a) confirmation of things that you know, and (b) discovering more about things you re not sure of. Search terms may not expose issues you never thought of, such as a top secret skunkworks project. Whattayaknow? This discussion would be pretty academic, particularly in the age of enhanced semantic analysis tools usually referenced as Technology Assisted Review (TAR), were it not for the fact that keyword search is also used to cull large data sets into manageable review size. Search may be added to date range, filetype and custodian filters to perform a first cut at a collection, or even proposed for application during the collection itself. Look at the above points and see if you are sanguine about this practice. If you keyword search a collection (which should greatly increase the time required) and miss vital items, the collection has to be redone. Regardless of the status of the legal hold, this is not something anyone wants to have happen. If you keyword search an image or date/custodian/filetype-filtered collection for culling, at least there is an opportunity to return to the source data at a cost of time, money and inconvenience.

5 July 2015 E-Discovery Tip Sheet Page 5 Keyword searching still has a place in review, and in preparing a starting point for TAR technologies such as continuous active learning. The key thing to remember is that it is not foolproof, and cannot be made so. -- Andy Kass akass@uslegalsupport.com The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily represent the opinion of U.S. Legal Support, Inc. U.S. LEGAL SUPPORT, INC. ESI & Litigation Services PROVIDING EXPERT SOLUTIONS FROM DISCOVERY TO VERDICT e-discovery Document Collection & Review Litigation Management Litigation Software Training Meet & Confer Advice Court Reporting Services At Trial Electronic Evidence Presentation Trial Consulting Demonstrative Graphics Courtroom & War Room Equipment Deposition & Case Management Services Record Retrieval Copyright 2015 U.S. Legal Support, Inc., 90 Broad Street, New York NY (800) All rights reserved. To update your address or unsubscribe from these mailings, please reply to this with CANCEL in the subject line.

Concordance and Transcripts Andy Kass

Concordance Tip Sheet June 2010 Concordance and Transcripts Andy Kass We have generally discussed in this series Concordance as used on documents. Whether scanned documents with TIFFs for Concordance Image,