With the explosion of digital data in litigation, lawyers may need to re-consider the application of full-text technology to manage discovery. New technology and new thinking may converge to help tame discovery.  

In previous blog postings, I have mentioned Attenex, H5 Technologies, and Cataphora as potentially interesting approaches to help identify and manage documents in discovery. More recently, I have come across InfoTame and Northrop Grumman software offered by Driven, Inc.. I believe these and other advanced full text approaches are promising, but only time will tell if they are superior to ordinary Boolean searching (for more on this, see my post Thoughts on Full Text Retrieval). [Ordinary Boolean search uses logical connectors such as AND, OR, and NOT and proximity operators such as “in the same sentence” or “within so many words.” These advanced tools usually have these features but layer on top of them various sophisticated techniques to extract more meaning automatically.]

Some serious commentators have suggested that the problem of huge volumes of data in electronic discovery could be addressed if opposing parties were to agree to use full-text searches to narrow the universe of document. I first saw this approach advocated by Adam Bendell of Strategic Discovery, Inc. in his article “Discovering a New Approach” in the The Future of Litigation, a Fall 2003 supplement to the American Lawyer magazine. More recently, Robert Brownstone of Fenwick & West writes in Collaborative Navigation of the Stormy e-Discovery Seas (10 RICH. J.L. & TECH. 53 (2004)) that “[t]o be efficient and effective, [the electronic discovery] process must mandate and enforce cooperation among the litigants as to search terms and other selection criteria needed to narrow down huge data sets into manageable subsets.”

As I understand Bendell and Brownstone, it would suffice just to use simple Boolean search software to narrow the field. That sounds right to me. But forward-thinking litigators and law firms need to consider whether more advanced search technology can provide tactical advantages and lower costs.