In searching for electronically stored information ("ESI") that is relevant to litigation, lawyers have traditionally employed keyword searches to assist them in finding relevant electronic data. A leading study conducted by David Blair and M.E. Maron demonstrated that attorneys were only 20 percent effective at thinking of all the ways that the creators of a document could refer to words, ideas, or issues in a case.1 Federal judges have also started to realize that keyword searches have limitations. At least one court has opined as to the necessity of expert witness testimony in validating the methodology of keyword searches.2 Another court has found that keyword searches that are not sufficiently supported by a methodology can result in the waiver of attorney-client privilege for documents that are inadvertently produced.3 A majority of the legal profession still uses keywords searches without realizing some of the drawbacks and risks. In light of some of the risks of keyword searches, lawyers need to be aware of some of the new types of methodologies that could assist them in locating relevant ESI. These new types of methodologies include Bayesian classifiers, fuzzy search models, and concept categorization tools. The utilization of these new methodologies, in combination with keyword searches and active lawyer insight and supervision of a case, can help mitigate against the risks of solely relying on keyword searches to find the needle in the electronic haystack.
Drawbacks of Relying Solely on Keyword Searches
Some Federal Courts Criticize Keyword Searches
Some Federal Courts Ask Lawyers to Think Beyond Keyword Searches
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