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Lawyers Must Learn to Search

For as long as there has been civil discovery in lawsuits, litigators have had responsibility for the task of figuring out how to search for the documents responsive to an adversary's requests. As the amount of information available to companies and people explodes, however, that task has become more challenging. Last week, Steven C. Bennett, a partner with Jones Day who also teaches electronic discovery at Rutgers and New York Law School, wrote on tech news site Internet Revolution that despite numerous advances in conceptual and artificial intelligence methods for search, the legal community has to a large extent ignored these developments.

Bennett offers several reasons for this disconnect. Among other things he reminds us that, historically, discovery in litigation was conducted exclusively on paper, with documents reviewed by hand for relevance.  He also notes that "the only search mechanisms generally taught in law school concern closed sets of materials, i.e., judicial opinions and other materials gathered by large publishing companies such as Westlaw or LexisNexis."

Bennett argues that those days may be gone, however, as courts have now suggested that expert assistance is required to formulate reasonable searches for purposes of discovery in litigation. Indeed, he cites U.S. District Judge Judge Facciola of the District of Columbia, who wrote last year that:

“Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman..." United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008).

If there are law schools that have not yet begun to teach advanced search and information retrieval techniques, now may be the time to start.

Posted by Bruce Carton on September 22, 2009 at 04:32 PM | Permalink | Comments (5)

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