The E-Discovery Beat caught up with Judge Andrew J. Peck after he spoke on a session about the future of keyword search in e-discovery. Here is an excerpt of the interview:
E-Discovery Beat: The session was titled ‘Are Search Terms Dead.’ It seemed that you and rest of the panel felt they are not dead but that a lot of lawyers aren’t putting enough thought into how the search term lists should be constructed. What are some of key elements that go into developing a strong and defensible keyword list?
Judge Peck: It has to be tested first of all. That’s probably the most important thing. You can’t just pick a keyword out of thin air. Just because you can find a Chinese restaurant in San Francisco on Google doesn’t mean you can find the keyword that’s going to get you to all the relevant documents. You need very importantly to talk to the client (data custodians) because there are a lot acronyms and other things that are pure client-speak and if you don’t that the product that’s now manufactured under a brand name was developed as ‘Project Phoenix’ or something like that you’re going to miss key documents.
E-Discovery Beat: From your experience, how important is cooperation between the parties in developing a good keyword list?
Judge Peck: Very important. If you do it on your own and you don’t do it well and even if you do do it well you’re going to be challenged later by the other side and there is a risk that as good as you may think you did, they can come up with a word that you should have used which adds to the expense. So, while some lawyers worry about work product and over transparency, it seems to me you’re much better off telling the other side ‘we’ve spoken to the client, here are the keywords we propose to use, do you have any thoughts on it?’ and if they say ‘yeah we want you to use every word in the dictionary’ you’re obviously not going to listen, but if they say ‘how about word X’ and it turns out to be a viable search term then you can use it and everyone is happy.
E-Discovery Beat: One of your co-panelists described 2012 as the year of predictive coding. Assuming we continue on the predictive trend and we see more and more adoption, do you see predictive technologies as something that will replace keywords or as just another methodology.
Judge Peck: I think that it will replace keywords in terms of the full search. Keywords still may be useful in coming up with the seed set that one uses to train the predictive coding, or TAR (Technology Assisted Review), software. Also, predictive coding, even when it gets much greater acceptance, which I hope it will, may not be appropriate for every case. There is still likely to be cases where because of lawyer comfort levels or the amount of money in issue that loading certain things onto the vendor platform to do a TAR process can be too expensive. So there are going to be cases where keywords are going to be sufficient, but again they have to be done right.