Page 4 - Litigation

S4 | TUESDAY, JULY 5, 2016 | Litigation
| NYLJ.COM

Finding Key Documents:
Tech Savvy alternatives is to proceed at some peril.

Some may think that the use of hosting
platforms and common search tools are all
Counsel Are Changing the Game
the technology needed to put legal teams
squarely in the digital age. Although host-
ing platforms are indeed light years ahead
of a banker’s box review, such technology is
primarily used as an organizational tool to
expedite a relevance and privilege tagging
process, thereby speeding up a review for

production. Finding the key documents that
make a difference in a litigation or investiga-
tion is different matter, however.
Keyword search, if poorly constructed, will
also likely fall short. As Judge John Facciola
famously stated in United States v. O’Keefe:
“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, statis-
tics and linguistics. . for lawyers and judg-
es 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.”3 And,
despite how well or poorly keyword search
may do the job, if left as part of a manual

process it still relies on a laborious review
of the “hits.”
To step towards the more sophisticated
approaches available for targeting key doc-
uments in complex document collections,
counsel today can rely on the triumvirate of
expertise that Judge Facciola identiies and
endeavor to use such expertise to mine data
instead of review documents.

Distilling the data to determine the who,
what, where, when, why and how of events
when dealing with increasingly large collec-
tions—replete as they may be with multiple
sources of data, proliferating ile types, miss-
ing or inconsistent metadata, ambiguous
email headers and hidden content—requires
a signiicant expenditure of time, money and

human resources. More advanced search and
analytics tools coupled with the appropriate
expertise in their use can help legal teams
expose case-deining information more quick-
ly. Consider the following beneits such tools
and expertise can provide:
• Data preparation: The irst step in any
search effort is to reduce and organize the
data collection to facilitate its interrogation. K
OC
For key document analysis, the goal is to iso- IST
late data that is unique and more likely to
be relevant. Experts can apply various tech-
niques to identify duplicates and near dupli- prosecution came upon the “needle in the understand technology as an ethical impera-
cates, analyze email chains (aka “email thread- BY JULIA L. BRICKELL haystack in a single, careless instant mes- tive (see, for example, the advisory opinion
ing”) to locate the master emails that contain AND PETER J. PIZZI
sage from Roomy Khan,” one source of that promulgated in 2015 by the State Bar of Cali-
an entire thread (thus enabling subsumed information.1
fornia Standing Committee on Professional
content to be set aside), and apply data il- In a recent 60 Minutes interview with Bill Ten years on, though the document volume Responsibility and Conduct regarding coun-
ters (think complex Boolean searches) that Whitaker, Andrew Michaelson, one of the would likely be exponentially larger, a team like sels’ relationship to technology in discovery,

will target certain types of known relevant lead prosecutors in the insider trading trial Michaelson’s could have found key information and the amended commentary for the ABA
content and exclude obviously non-relevant of the Galleon Group hedge fund manager much more easily by calling on advanced tools Model Rules of Professional Conduct Rule 1.1
content. Not only will these processes reine Raj Rajaratnam, recounted his struggle to and expertise to mine the electronically-stored Competence2), counsel’s understanding of
the data population, but they can help avoid comb through “hundreds of thousands” of information. Together, tools and know-how can advanced search and analytics approaches
the kind of situation Google faced in its litiga- trading and phone records, instant messages probe data collections directly and strategi- takes on increased importance. Whether
tion against Oracle over Java,4 where drafts and emails to ind the source of Rajaratnam’s cally. The information that can be mined is working on an internal investigation or
of a damaging email asserted as privileged inside information. In an investigation that more than the words on the page or the image preparing for or engaged in litigation, there
slipped into the production. Near-duplicate began in 2006, it took more than six months in a picture. It includes hundreds of categories are choices available which enable counsel

identiication and/or email threading would of painstaking manual analysis before the
of data about each document (the metadata), to make use of the data embedded in the
have increased the chances that the drafts allowing multiple methods to cull through the information collected, including methods to
would have been reviewed for privilege at volumes, make important connections, and streamline the process, identify key informa-
the same time as similar content.
JULIA BRICKELL is executive managing director and get answers lawyers need.
tion, and assess the merits of trial or settle-
• Identifying “who”: Identifying individu- general counsel of H5. PETER J. PIZZI is a founding As courts and bar associations increas- ment approaches in a timely manner and
als directly or indirectly involved in the matter
partner of Walsh Pizzi O’Reilly Falanga.
ingly challenge lawyers to view the ability to
at lowered cost. To ignore these potential