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Your Search for Key Documents in Litigation: Effective or Exhausting?

When it comes to key document identification in litigation and investigations, it’s time to retire the dragnet approach and call in the experts.

We’ve all seen the news coverage of a dragnet of volunteers, dutifully walking arm-in-arm through a field, looking for clues to help locate a missing person. An exhaustive search of a defined area is underway, no stone is left unturned, and the end goal — justice! — is in the crosshairs. For those seeking evidence of the goodness in people, this can be a profoundly moving sight.

But as an investigative approach, is such an exhaustive search productive, or simply exhausting? The arm-in-arm search of the field for clues may or may not yield something useful, but ultimately, it’s the experts using their tools and skills that end up solving the case.

In today’s litigation or investigations, a search for relevant evidence is too often a similar sort of dragnet, but one conducted across a “data field” executed by a group of, well, not volunteers — but you get the picture. Document reviewers and case team members dutifully slog through the field of potential digital evidence or poke around with keywords, hoping that some email communication, document or spreadsheet will be the key that unlocks the mother lode.

Fortunately, in this era of big data, attorneys who find themselves confronted by huge data volumes have begun taking steps to limit and prioritize the vast expanse that must be searched, just as detectives do when they rope off a field for the dragnet. They’re getting much better at defining data locations, targeting specific custodian collections and culling or filtering data to shrink the possible data volume that has to be searched. But after all that, they’re usually just confronted with a smaller field, not the evidence they seek, and it’s still a field that’s way too big. Is there a better way to find what really matters?

Detectives use their expertise and judgment to prioritize their efforts. They look for evidence of criminal behavior where they know such behavior typically happens — out of sight, not out in the open. They look for patterns and analyze information that moves them to the next step. They use expert investigative tools, check databases, compare fingerprints. It is their experience, expertise and follow-up of the clues that usually cracks the case.

The “smoking gun” — it’s probably there, but where?

More than one litigation case team has suffered the frustration of knowing that there are smoking gun documents in the data collection that they just can’t find. The truth is that they’re actually hobbled by the dragnet or brainstormed keyword approach when there are more expert tools and methods that can reveal critical information. With review teams on different tracks, they likely wouldn’t notice, for example, an usual abundance of sports metaphors that could be code for something more nefarious. Or off-hour communication clusters among certain employees. Or any number of patterns that are not made manifest through a standard document review or even the most well-constructed keyword list.

For the attorneys looking for evidence, choices about tools and approaches matter, just like they do for the detective. Many attorneys believe that they must “put eyes on every document” or “do their due diligence” or <insert your firm’s rationale here>. They believe that they need to use every resource available in a dragnet-type search for evidence. While this sounds impressive and may impress the client, it usually accomplishes little and costs more, not to mention the psychic energy drain on available resources. After all, do you want to have to spend your time and focus on every scrap from your data collection on the off chance that it has to do with the facts you are seeking? Or would you, like the knowledgeable detective, prefer to take a more expert approach by, say, methodically investigating the house, possessions and friends of the missing person first and snaking the trail from there?

Instead of tackling the data field wholesale, consider the deployment of skilled search professionals who are familiar with both the subject matter and the tricks of those trying to hide bad behavior; experts who have the tools and expertise to help you find what you need to build your case narrative more quickly and accurately and can wrest from the data morass the stuff that really matters.

So, in the search for key evidence, act like the detective in charge. Call the experts into service, let them loose on the data with their expert tools, and retire the dragnet approach to discovery — it’s a good effort and a great visual, but it’s not likely to solve the case.

Learn how H5’s search experts can help your case team with key document identification here.

 

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