Keyword searching is a very common method used in litigation or investigations to target potentially relevant information, but it is easy to get it completely wrong.

The use of search terms is an approach that many lawyers are familiar and comfortable with. We all use keywords every day through search engines like Google, but search terms in eDiscovery might not find what you are searching for.

Keyword search terms will not find what you are looking for unless they are carefully crafted and refined if necessary.

Limitations

Traditionally lawyers have turned to keyword search terms as an easy method to cull documents to a smaller set, but many are unaware of the limitations of keyword search terms.

Keywords create a black or white scenario – a document is either in or out, a document either contains the word or it doesn’t.

Running search terms may reduce the volume of documents to review, but it could mean that crucial information is missed if the keyword does not result in a “hit” in a document. Alternatively the search terms may produce irrelevant documents that may have different meanings to that intended.

Problem with method

The problem is not using a search term approach, but the method in which they are applied.

Choosing effective search terms is not as simple as preparing a list of words the lawyer thinks will help them find the relevant documents.

Like other aspects of preparing for a case, you need to understand what you are looking for, and often before you look for it. Search terms are often developed too early in the process and then become entrenched in the discovery order. They are usually based solely on the lawyer’s own knowledge of the case, often without sighting documents or testing/sampling the search terms.

The problems escalate when the legal team begins its document review. Lawyers can end up spending their valuable time reviewing information that is completely irrelevant to the exercise. Lawyers who have reviewed documents based on keyword search terms will appreciate the frustration this can cause – adding needless time and expense to the discovery process.

Improving effectiveness

Search terms can be an effective method of isolating important information, but it is essential to invest time devising appropriate terms. Any approach should involve testing, sampling and then potentially refining terms as required.

These steps may assist in making a keyword approach more effective.

Talk to your custodians

Use the knowledge of individuals involved to identify any specific language, terminology or abbreviations that may be specific to the matter.

Construct initial keyword search terms

This should be a combination of the terms from individuals involved in the matter and the legal team.

Test and sample the initial search terms

Identify the hit counts for each search term. Have they produced the results you were seeking? What is being captured and what is being missed? Be aware of spelling mistakes, or different words that may refer to the same thing. The ability to quickly see the terms in their context is a powerful way to analyse if the terms need further revision.

Refine search terms

Are there variables of the search terms that should be run? This should be an iterative process, including co-operating with the other side until all parties can agree on the keywords that will be effective in locating the information you require.

Engage specialist expertise

A trusted advisor can be invaluable in navigating you through the search process, helping you and your client to save time and money. They can assist you to test and sample the results, providing clarity of what the search terms may deliver and suggest potential variations that help you find what you are searching for.

When testing and sampling the results, it is important to:

• ensure the keywords are comprehensively searching all file types;
• be aware if one party has scanned paper documents that are not 100% searchable – their search terms will not capture the documents you are seeking; and
• provide hits for search terms and variable search terms. Is the software capable of running the searches you require?

Sampling search terms early in the process will be a considerable advantage to substantiate your approach, as you seek to agree a proportionate approach with the other side.

It is important to note that keyword search terms are just one of many options to help lawyers get to the information they want. Other technology assisted review options (as I outlined in LawTalk Issue 835), may be more effective in getting to the most important information quickly, cheaply and accurately.

Irrespective of approach, when reviewing documents it is beneficial to use software that enables you to group similar documents together, to help increase the speed and accuracy of the review.

Conclusion

Keyword search terms can be an effective method of isolating important information, but they do need to be carefully crafted. If they are not, then they will not find what you are searching for.

Investing the time devising appropriate search terms, involving testing, sampling and potentially refining will give you a much better chance of finding what you are searching for.

Andrew King is the founder and strategic advisor at E-Discovery Consulting (www.e-discovery.co.nz), where he manages the entire discovery process or provides independent advice on any aspect of it. He also organises New Zealand’s Law & Technology Conference, which is being held again in Auckland in May 2017. Andrew can be contacted on 027 247 2011 or andrew.king@e-discovery.co.nz.