Finding and filtering relevant documents in e-discovery is a big challenge. What steps must a lawyer take? Just how far does a lawyer’s ethical obligation go?
In Improving E-Discovery with Smart [Humans] [Technology] (16 March 2008) I suggested that lawyers must learn enough about e-discovery software to use it effectively to search for and find relevant documents. (But I agree with Will Uppington’s comment that the software could be easier to learn.)
Craig Ball, in his always excellent Law Technology News column, addresses this issue in The Science of Search (April 2008). He concludes that lawyers
“need to learn more about the science of search as part of our legal and continuing education. We need to become skilled at tools and methods that help us refine searches and routinely test them against representative data so we can distinguish noisy terms from effective ones and learn to zero in on relevant ESI.”
Does a litigator’s ethical duty of zealous representation extend to learning search software. As I understand it, difficulty does not excuse a lawyer from a duty but may be a basis for delegation with supervision. Ethics aside, I agree with Ball that as a practical matter, lawyers must learn how to search. Unfortunately, this challenge is bigger than meets the eye.
Ball also writes that “lawyers believe themselves adept at keyword search in e-discovery because they’ve mastered keyword search in online legal research.” Lawyers may honestly believe they know how to search, but I suspect this is another honestly held but wrong belief. My conversations with law librarians over two decades suggest many lawyers have not mastered online legal research search techniques.
To clarify a lawyers’ obligation, all we need is a malpractice case. It would allege that a lawyers failure competently to search an e-discovery database led to a bad outcome. Nothing like a malpractice case to cause lawyers to pay attention.