What Lawyers Can Learn from Google About eDiscovery

What Lawyers Can Learn from Google About eDiscovery

What Lawyers Can Learn from Google About eDiscovery 150 150 Jason Krause

Google, the company that keeps track of everything people search for on the Internet, doesn’t want you to know how they search for information. At least, that’s what is happening in the ongoing Apple v. Samsung, saga, where Google—a non-party in the case—has been ordered to reveal the search terms it has used to find documents related to the matter.
Apple v. Samsung

Google’s search technology is one of the most closely guarded secrets in the business world. So it’s not really surprising that it is putting up a bitter fight in court to keep its search strategies under wraps. Apple attorneys want to know how Google found the documents it has produced for this intellectual property matter after being underwhelmed by the volume and quality of the information Google has produced.

According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive eDiscovery.”

 

The Magic Bullet is a Blank

eDiscovery pundits like to think that they can just throw new search technology at data sets and magically retrieve all of the relevant documents in a matter. Everyone hopes through the magic of technology, machines will suddenly be able to review a collection of data and produce evidence to all parties. But lawyers should note that Google, the King of Search, relies on the of use of search terms to find data, not advanced algorithms and black box technology.

There are two important lessons in this ruling:

1. eDiscovery review is still dependent on good search terms. Even Google, the world’s most successful search company can’t find everything if it uses inadequate search terms.
2. Open and transparent search and review processes is essential to meaningful, cost-effective eDiscovery. The court, citing the precedent DeGeer v. Gillis, noted, “[s]electing search terms and data custodians should be a matter of cooperation and transparency among parties and non-parties.”
Attorney and eDiscovery consultant Bill Speros recently wrote about search strategies on Ralph Losey’s blog. As a self-described “linguistic bird-dog,” he is concerned that lawyers have been led to believe intelligent machines will find all of the relevant documents in a matter.
 

Search Terms Are Vital

But as is clear in this case, even Google and its high-powered lawyers need to focus on the intelligent and thoughtful use of keywords to begin finding relevant documents. Successful search is an iterative process, meaning lawyers and reviewers need to consider whether they are returning relevant documents, and refining searches until they do. It takes common sense and careful consideration to review large sources of data, not just computing power and science.
Just as important is transparency, which means sharing search terms and methodologies with other parties. The court explicitly rejected Google’s arguments that as a third party, the company should not be compelled to reveal its search strategies, claiming it was somehow burdensome and compromising.
As the ruling sarcastically noted, “Underlying Google’s premise is that transparency in the eDiscovery process is a burden or that the methods of eDiscovery are somehow sacrosanct, and that revealing those methods opens the floodgates to more requests for eDiscovery.”
Initially, Google maintained that its search terms and choice of custodians were privileged under the work-product immunity doctrine, but that was flatly rejected. If lawyers fail to make that effort, courts will call them to task- even if those lawyers work for Google.
Specifically, the court gave them 48 hours to show their work, at which point the parties are ordered to meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.


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