Close
Enter your
text here

Electronic Discovery

Court Denies Defendant’s Request to Image Plaintiff’s PCs Three Years after Termination – eDiscovery Case Law
 

Here’s an interesting case courtesy of Virginia Lawyer’s Weekly…

In Downs v. Virginia Health Systems, Civil No. 5:13cv00083, (W.D. Va. June 2, 2014), Virginia Magistrate Judge James G. Welsh, citing proportionality and privacy concerns, denied the defendant’s motion to compel the mirror imaging of the Plaintiff’s personal computers nearly three years after she had been terminated.

The plaintiff brought an employee discrimination case against the defendant following being terminated after nearly seventeen years of employment as an executive secretary.  Among the reasons the defendant gave to justify her discharge was that that she had accessed her supervisor’s e-mail account without authority (she disputed that the access was not authorized) and that she had similarly forwarded information from that account to her personal email accounts and her home computers without permission.

The plaintiff represented that she had deleted all material she sent to her home computers following her August 2011 termination; therefore, the defendant requested to have the plaintiff’s two family computers mirror-imaged “to ensure against any further spoliation or destruction of evidence”.  The plaintiff objected to that request as “overly broad, burdensome, ‘personally intrusive,’ and ‘would necessarily invade’ the attorney-client privilege”.  She also argued that the defendants’ in-house IT experts and its own computer logs and reports would provide the same information being requested by the defendant to be mirror-imaged.

Judge Welsh stated that “On its face, the discovery issue presented by the defendants’ request for an exhaustive forensic examination of the plaintiff’s computers is also directly within the scope of ESI discovery contemplated by the inspection, copying, testing and sampling provisions of Rule 34(a)(1)(A).”  Ultimately, however, he also stated as follows:

“Consideration of the defendants’ ESI motion in a manner consistent with the forgoing discovery rules, standards and principles, compels the following findings and conclusions:

(1) nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) the “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) there was no duty on the part of the plaintiff to preserve her family computers as evidence,

(4) principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) on the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.”

As a result, “even though the defendants have demonstrated a connection between the plaintiff’s two family computers and the issues this lawsuit”, Judge Welsh stated that “the court’s consideration of the several other relevant factors, including the proportionality balance required by Rule 26(b)(2), all weigh heavily against permitting the exhaustive and intrusive computer forensic examination the defendants seek” and denied the defendant’s motion to compel.

So, what do you think?  Should the drives have been imaged or did the defendant’s request fail the proportionality test?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Once Again, It’s Time to Nominate Your Favorite Law Blog – eDiscovery Trends
 

It’s that time of year!  If you have a favorite law blog (or “blawg”, get it?), now is the time to nominate it for recognition in the ABA Journal 8th Annual Blawg 100.

On their Blawg 100 Amici page, you can complete the form to identify yourself, your employer or law school, your city and email address, the URL of the blog you wish to nominate, a link to a great 2013 post from the blog and a brief (up to 500 characters) description as to why you’re a fan of the “blawg”.  You’re also asked whether you know the “blawgger” personally (and admonished to “be honest”), whether ABA Journal can use your name and comment in their coverage and, if you follow the blogger on Twitter, describe what makes him/her stand out.  You can nominate more than one “blawg”.

ABA Journal notes that they discourage submissions from:

  • Bloggers who nominate their own blogs or nominate blogs to which they have previously contributed posts.
  • Employees of law firms who nominate blogs written by their co-workers.
  • Public relations professionals in the employ of lawyers or law firms who nominate their clients’ blogs.
  • Pairs of bloggers who have clearly entered into a quid pro quo agreement to nominate each other.

Friend-of-the-blawg briefs (i.e., to fill and submit the form) are due by no later than Aug. 8, 2014 to include your nomination.

If you have enjoyed reading eDiscovery Daily over the past year and found our blog to be informative, we would love to be recognized!  Feel free to click on the link here to nominate us!  We appreciate the consideration!

There are other excellent legal technology blogs out there.  Here are a few of our favorites.  Feel free to nominate them too.  🙂

For compilations of eDiscovery news and analysis, I’d also like to recognize PinHawk Law Technology Daily Digest and Complex Discovery as excellent sources for eDiscovery information.

Our hats are off to all of those who provide eDiscovery news and analysis to the industry!  Again, if you would like to nominate any of the blogs (including, of course, eDiscovery Daily), click here.  Deadline is August 8.

So, what do you think?  Do you have a favorite eDiscovery blog or source of information?  Share it with our readers!  And, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Twitter Remains Transparent Regarding Government Requests – Social Tech eDiscovery

Yesterday, we took an updated look at Twitter to see how it handles private information and law enforcement requests (such as subpoenas) and what has changed since our last look about two years ago.  Today, we will take a look at Twitter’s latest Transparency Report to show government requests for data over the last six months of 2013.

Transparency reports are typically issued by companies to disclose numerous statistics related to requests for user data, records, and website content. These reports indicate the frequency and authority that governments request data or records over the given period. Due to the creation of these reports, the public may be informed of the private information governments gain access to via search warrants, court subpoenas and other methods.  Many other major communication platforms provide Transparency Reports as well, such as Facebook, LinkedIn, Google and Microsoft.

Twitter began publishing Transparency Reports in 2012 (we took a look at their first one here) and has continued doing so every six months or so.  Twitter’s current format for their Transparency Report is divided into three categories: trends in government requests for account information, government requests for content removal, and copyright notices and is available for every reporting period since Twitter began publishing the report. The Transparency Report also offers insight as to whether or not Twitter acts upon the requests sent to the company.

The first category is Information Requests. This includes worldwide government requests for account information typically connected to criminal investigations. For the six month period from July 1 to December 31, 2013, Twitter had 1,410 information requests. Due partly to the influence of Twitter’s growing global expansion, this number is a 22% increase from the prior period; however, the United States still accounted for 59% of the total requests.

In the Removal Requests section, Twitter includes government requests and other complaints of illegal content from authorized reporters to remove or withhold its content. In the first half of 2013, there were a total of 60 requests. However, in the second half of 2013 this number was over five times greater – 377 requests!  Now that’s an upsurge!  309 of those requests came from one country – France.  The removal requests number does not include emergency disclosure report numbers, as this information cannot be disclosed to the general public at this time.

As for copyright notices, Digital Millennium Copyright Act (DMCA) takedown notices rose from 5,753 in the prior period to 6,680 – a 16 percent increase.  To find more information about Twitter’s Transparency Reports, you can review them online by clicking here.

Next week, we will take a look at how another platform – LinkedIn – handles privacy, law enforcement requests and transparency.

So, what do you think?  Do you feel that Twitter provides enough information in their report?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Twitter’s Law Enforcement Policies Revisited Again – Social Tech eDiscovery

It’s time to take another look at the social media platforms to see how they handle private information and law enforcement requests (such as subpoenas).  Let’s start with Twitter.

In 2010 and 2012, we reviewed Twitter’s Privacy Policy and Law Enforcement Guidelines.  Since our last review, despite their efforts to fight it, Twitter was ordered to produce tweets for a New York criminal case (People v. Harris).  At the time, Manhattan Criminal Court Judge Matthew Sciarrino stated that “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy”, but acknowledged that his decision was “partially based on Twitter’s then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”  After its appeal was denied, Twitter ultimately complied with the order.

There aren’t a lot of changes to Twitter’s Privacy Policy since our post in 2012, though the page is rearranged.  Most information in Twitter is still publicly shared with everyone, as noted by the tip at the top – “What you say on Twitter may be viewed all around the world instantly” (which former congressman and failed NYC mayor candidate Anthony Weiner famously discovered).  Your privacy settings determine whether some information such as location of tweets, email address and cell phone number is private or not.

In the Privacy Policy, Twitter now provides some details about Data Retention of account data, which is about 30 days from the date of deactivation, with the data being permanently deleted within a week afterwards.  Although the Data Retention section of the Guidelines for Law Enforcement page still states “Twitter retains different types of information for different time periods”.

One key change to the Guidelines for Law Enforcement page is that Twitter now provides a web form for law enforcement officers to submit general inquiries or emergency disclosure requests (no more sending faxes!).  If you’re not an authorized law enforcement or government representative, you can’t use the form.

Tomorrow, we will take a look at Twitter’s latest Transparency Report to show government requests for data over the last six months of 2013.  See you then!

So, what do you think?  Have you needed to request information from Twitter for litigation purposes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Samsung and Quinn Emanuel Ordered to Pay Over $2 Million for “Patentgate” Disclosure – eDiscovery Case Law

Remember the “patentgate” disclosure last year (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia?  Did you think they were going to avoid having to pay for that disclosure?  The answer is no.

In a June 20 ruling by California Magistrate Judge Paul S. Grewal, he began by noting “With the present quiet on the docket, it is easy to forget the long tumult of this case that once reigned. The ceremonial courtroom has cleared. The fire drills of motions on shortened time have ceased. All that remains for now, at least for the undersigned, is the relatively mundane issue of what makes for reasonable fees.

The fees at issue arise from this court’s order awarding sanctions to Apple and Nokia. The sanctions followed the court’s finding that Samsung and Quinn Emanuel were responsible for the unauthorized distribution of Apple and Nokia confidential information. Samsung and QE object to certain of the fees Apple and Nokia now claim, which means the court must wade into the billing entries and make various calls. So, here goes.”

The summary of events related to the inadvertent disclosure by Quinn Emanuel are described here and the details of the sanction applied to Quinn Emanuel are described here.

The question in this order turned to the fees and costs requested by Apple and Nokia.  Section C of the order was titled “With Limited Exceptions, Apple And Nokia’s Requests Have Been Sufficiently Supported To Sustain The Requested Award” and Judge Grewal stated that “in the over four hundred pages of correspondence and billing records submitted for review, the court has identified only 19 records that it finds troubling” (those were entries where partners and senior associates block billed ten or more hours on “drafting,” “preparing” “revising” or paying “attention to” various briefs and were listed in detail, along with the reduced amount after a 20% reduction penalty).

As for the rest of the entries, Judge Grewal commented that “[t]he court notes and appreciates that both Apple and Nokia have applied a series of discounts to their requests already” and ordered that, aside from the noted exceptions “the court finds that the remaining costs and fees requested by Apple and Nokia are reasonable and shall be awarded.  No later than 30 days from this order, Samsung and QE are to pay Nokia a total of $1,145,027.95 and Apple a total of $893,825.77 in fees and costs.” (emphasis added)

So, what do you think? Were those amounts awarded excessive?  Or did Samsung and Quinn Emanual get off lightly?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Rules in Dispute Between Parties Regarding ESI Protocol, Suggests Predictive Coding – eDiscovery Case Law

In a dispute over ESI protocols in FDIC v. Bowden, CV413-245 (S.D. Ga. June 6, 2014), Georgia Magistrate Judge G. R. Smith approved the ESI protocol from the FDIC and suggested the parties consider the use of predictive coding.

After FDIC-insured Darby Bank & Trust Co. failed in November 2010, the FDIC took over as receiver (as FDIC-R) and brought a bank mismanagement case against sixteen of Darby’s former directors and officers.  Thus far, the parties had been unable to agree on a Joint Protocol for Electronically Stored Information (ESI) and the dispute ultimately reached the court.  The FDIC-R had already spent $614,000 to digitally scan about “2.01 terabytes of data or 153.6 million pages” of data at the bank, but the defendants insisted that the FDIC-R shoulder the burden and expense of reviewing the documents and determining their responsiveness to the claims “”[e]ven though the Bank’s documents were created under Defendants’ custody and control”.

The defendants also argued for a protocol which involved the FDIC-R to “repeatedly search, review, and re-review myriad ‘second-run’ (Phase II) documents, then turn over to them the documents relevant to both claims and defenses that arise in this litigation. The FDIC-R argued for a protocol in which it would produce “categories of documents most likely to contain relevant information” which the defendants could then search, claiming that protocol would be the more “correct allocation of discovery burdens between the parties.” The defendants contended that “search terms alone won’t suffice” and the FDIC-R’s proposed protocol does not relieve the receiver of its Rule 34 burden to “locate and produce responsive documents.”

After reviewing the two proposed protocols, Judge Smith ruled that “given the common ground between the dueling protocols here, the FDIC-R’s ESI protocol will be implemented, as modified by the FDIC-R’s ‘briefing concessions’…as well as by the additional guidance set forth in this Order.”  Those briefing concessions included “offering to open ‘all of the Bank’s former documents . . . [so defendants can retrieve them] to the same extent that the FDIC-R can’” and “offering, in ‘Phase II’ of the disclosure process, to ‘meet and confer with Defendants to reach agreement upon a set of reasonable search terms to run across the database of sources of the ESI to identify documents for production’”.  In approving the FDIC-R’s protocol, Judge Smith stated that “the FDIC-R may meaningfully deploy suitable search terms to satisfy its initial disclosure requirements and respond to forthcoming Rule 34 document requests”.

Also, referencing the DaSilva Moore decision of 2012, Judge Smith stated that “the parties shall consider the use of predictive coding” if ESI protocol disagreements persisted noting that it “has emerged as a far more accurate means of producing responsive ESI in discovery”.

So, what do you think? Should organizations bear the bulk of the discovery burden in cases against individual defendants? Or should the burden be balanced between both parties?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume posts on Monday, July 7.  Happy Birthday America!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

EDRM Introduces Search Intent Framework – eDiscovery Trends
 

It seems that just about every month EDRM publishes a new standard or guideline for eDiscovery best practices.  On Monday, they announced the release of a new Search Intent Framework.

As their press release states: “The new framework was developed to define and document various types of search intent that are part of the EDRM.  Within the EDRM, ‘search” is used broadly in many contexts: to assess or scope a matter, acquire specific documents or discrete information or classify preselected documents; these have minimal legal impact. For other EDRM searches, the legal impact is high, such as in asserting comprehensiveness and accuracy. Enterprise search, early data assessment, e-discovery processing search functions, review system search functions and even concept analysis or document clustering tools are all described as ‘search’ in the context of the EDRM, with little recognition that poor accuracy in one context is more consequential than in others.”

So, why the need for a search intent framework?  “The intent of any search is what determines the appropriate technology, process or workflow that should be implemented and the level of scrutiny to be applied in determining “reasonable” success. The EDRM Search Intent Framework was developed to define and document the different classes and subclasses of search intent that comprise the EDRM.”

With regard to classes of search intent, the EDRM Search Intent Framework (available here) describes three classes:

  • Exploratory Class: Used to confirm whether or not a specific document, reference, or discrete piece of information exists, as well as to gain general knowledge about a document set in order to understand how to handle the data set.
  • Classification Class: Used to categorize individual documents or a set of documents as to their responsiveness, non-responsiveness, whether or not they flag a policy, and so forth.
  • Quality Control: Used to identify inconsistencies in a document set. Quality control testing is typically done during review and production to test that documents are properly coded and are appropriate to either be produced or not produced.

Each Class includes the Sub-Class, Intent, Implementation and Measure of Success associated with each Sub-Class within the Class.  The Framework provides a color coded legend to identify each phase of the EDRM, from Information Governance to Presentation and uses those color codes to identify which phases apply to each Sub-Class (for example, in the Exploratory Class, Identification, Preservation and Collection apply to the Assessment Sub-Class).  Each Sub-Class is flowcharted from the Sub-Class down to the Measure of Success resulting from the Sub-Class of search intent.  Detailed descriptions are also provided for each Sub-Class.

As the Framework states, “It is the intent of the search that should determine the appropriate technology, process, or workflow, that should be implemented, and the level of scrutiny to be applied in determining “reasonable” success.”  Apparently, all searches aren’t created the same!

From the link above, the Framework can be downloaded as a single page PDF – unfortunately, the page dimensions are 23.95 x 13.30 inches (a three page Framework might be easier to read, just sayin’).  But, the Framework does provide a clear depiction of the intent of each type of search from intent to implementation and measure of success.

So, what do you think? Could this new Framework help your search strategy?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Farewell to IT-Lex – eDiscovery Trends

We enjoy the opportunity to be a daily resource for eDiscovery news and analysis.  There are several good resources for information about eDiscovery and legal technology, though very few of them provide new content daily.  One that has been essentially doing so for the past two years is IT-Lex.  Unfortunately, as of today IT-Lex has announced that they have discontinued operations.

A few days ago, IT-Lex announced the news on their site here:

“For the past two years, IT-Lex has been honored to advance the dialogue on all matters concerning technology law.  Since our upstart beginning as a simple blog that could easily be confused for a college student’s tumblr feed, IT-Lex has published well over 1,000 blog posts, hosted the Innovate Conference in October 2013, awarded thousands of dollars in scholarship money to law students, and, most recently, published the IT-Lex Journal.

Behind these successes, there have been sleepless nights, long weekends, and boundless effort from everyone involved in our not-for-profit endeavor.  As they say, “All good things must come to an end.”  After a great deal of thought and consideration, those of us at IT-Lex will be moving on to other endeavors.  IT-Lex will discontinue operations on July 1, 2014, but we will leave the articles on our site up as an archive for as long as possible.

It is our sincere hope that in some way, big or small, IT-Lex was able to help you, your practice, and the legal profession through entertaining educational materials, networking opportunities, or even simply giving you a good laugh in the middle of your workday through one of our more light-hearted posts.

On behalf of Lexington (our robot mascot), and all of us at IT-Lex, it has been a heck of a ride . . .  thank you for coming along with us.”

Samir Mathur and Adam Losey were kind enough to allow me to write a guest post once (Lessons Learned from eDiscovery Thought Leaders, from our thought leader interview series of 2013) and Adam was kind enough to participate in our thought leader interview series the past two years (here is his two part interview from 2013 and also his 2014 interview).  Their efforts have resulted in high quality legal education content for lawyers and law students alike, as well as assistance for law students and all within a 501(c)(3) non-profit organization.  Nice!

Alas, as they said “all good things must come to an end”.  I’ll miss their articles, though as noted above, IT-Lex will leave their past articles up on their site as long as possible.  I encourage you to check them out – they’re enjoyable to read and very informative.

So, what do you think? From what resources do you get useful eDiscovery information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Ordered to Re-Open Social Media Account for Discovery – eDiscovery Case Law
 

In Chapman v. Hiland Operating, LLC, 2014 U.S. Dist. Case No. 1:13-cv-052 (D.N.D. May 29, 2014), while noting that he was “skeptical” that reactivating the plaintiff’s Facebook account would produce any relevant, noncumulative information, North Dakota Magistrate Judge Charles S. Miller ordered the plaintiff to “make a reasonable, good faith attempt” to reactivate her Facebook account.

The defendant’s requests for production included a request for communications in the form of, “emails, text messages, instant messages, journal updates, Facebook postings, notes, cards, and/or memorandums”.  The plaintiff objected to that request on several grounds, including that it violated the attorney client and work product privileges, was “unintelligible, improperly vague and ambiguous” and overbroad.

However, in the plaintiff’s deposition, she stated that her attorney advised her to deactivate her Facebook account, which occurred prior to the production request by the defendants. She also stated that stated that she attempted to reactivate her account to respond to discovery requests but was unable to remember her password, but had not attempted to change her password or contacted Facebook regarding reactivating her account. She claimed that she rarely used the account, and when she did it was primarily to communicate with her nieces and nephews. 

Judge Miller noted that although the court was “skeptical” that the plaintiff’s Facebook account “will contain any relevant, noncumulative information, especially given the amount of discovery already completed in this case”, he granted in part the defendant’s motion to compel and ordered the plaintiff and attorney to “make a reasonable, good faith attempt” to reactivate the Facebook account.   He instructed that the plaintiffs do not have to permit defense counsel to be present during the attempt to reactivate the account, and if the account is reactivated, plaintiffs do not have to provide defense counsel the account login and password or full access to the account.

If the Facebook account is reactivated, Judge Miller ordered the plaintiffs to produce in the form of a screen shot other similar format all information from the account referencing a co-plaintiff’s health and his relationship with the other plaintiff since October 19, 2008, and ordered the plaintiff to complete the items by June 27th (last Friday).

So, what do you think? Was the plaintiff’s attorney out of line in ordering the plaintiff to deactivate her Facebook account?  Are screen shots the best way to produce social media data?Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Want to Craft Better Searches? Use a Dictionary – eDiscovery Best Practices

On the very first day we launched this blog nearly four years ago, one of our first blog posts was called “Don’t Get ‘Wild’ with Wildcards” where we showed how a poorly constructed wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining” actually retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min” (such as words like “mink”, “mind”, “mint” and “minion”).  So, how do you find the actual variations of the word you want?  Use a dictionary.

In that blog post back on September 20, 2010, we discussed that one way to capture the variations is with stem searching.  eDiscovery applications that support stem searching give you an ability to enter the root word (e.g., mine) and it will locate that word and its variations.  Stem searching provides the ability to find all variations of a word without having to use wildcards.

But, what if your application doesn’t support stem searching?  As we noted back then, Morewords.com shows list of words that begin with your search string.  So, to get all 269 words beginning with “min”, go here – simply substitute any characters for “min” to see the words that start with those characters.  You can choose the variations you want and incorporate them into the search instead of the wildcard – i.e., use “(mine or “mines or mining)” instead of “min*” to retrieve a more relevant result set.

However, do you really want to search through 269 words to get the ones you want?  Or, what if you put your wildcard in the wrong place?  You can miss relevant variations as easily as you can over-include non-relevant ones.  How do you get to the right variations of the word you want?  Use a dictionary.

Dictionary.com, that is.  Type in the word that you want at the top of the form and find all of the uses of it (e.g., the yellow sweater is mine) and also variations of it (mined, mining).  You can even find synonyms of the word (e.g., reserve, excavate) on the left hand side of the form (via Thesaurus.com) that might lead to additional terms you may want to include in your search.

A recent client proposed a wildcard of depreciate* to reflect assets that depreciate.  That wildcard would have picked up variations such as depreciates and depreciated, but would have missed other obvious variations like depreciating and, of course, depreciation.  So, believe it or not, a poorly placed wildcard may not be “wild” enough.  How do you make sure you cover all of the variations you need?  Use a dictionary.

So, what do you think? Do you use wildcards in your eDiscovery searches? If so, how do you check them to ensure that they are neither over-inclusive nor under-inclusive?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.