In This Issue:

	Feature Article: Conceptual Search Advances the Art of Document Review
	Case Law Updates
	News & Events

Feature Article: Conceptual Search Advances the Art of Document Review

Discovery within the context of civil litigation is more complex, time-consuming and costly than ever. Aside from the volume of electronically stored information, which itself puts a tremendous strain on the judicial system, it is often difficult to search through those materials to find relevant data. It might be possible for parties to agree on a list of keywords that will be utilized throughout the litigation. However, if the parties are at an impasse and cannot agree on a keyword list or if an opposing counsel or party has not surfaced to have these discussions, preserving and collecting data by use of a keyword list might not be possible. Moreover, at least several judges have noted the shortcomings of keyword searches. For instance, individuals often misspell words, abbreviate or use acronyms or synonyms that might not be readily apparent to the attorney conducting the search and those terms might not be captured through a keyword search. In the current challenging economic environment, practitioners need a defensible way to search for, review and produce relevant ESI without exceeding the client's litigation budget. Conceptual searching may provide the solution.

Conceptual search retrieves documents from a data set without requiring the occurrence of the search term in the retrieved documents, rather, the query will return documents that are conceptually related to the search term. For example, a conceptual search for "cellular" will return documents containing the words "mobile" and "Federal Communications Commission" in a document set involving telecommunications. Moreover, this intelligent search technology will return documents containing the words "genetics" and "molecular" in response to an identical conceptual search for "cellular" if its analysis reveals that the document set contains documents about biology.

Concept searching technology employs latent semantic analysis, a technique which analyzes relationships between the terms contained in documents by identifying concepts related to the documents. The result is a powerful search engine that allows users to rapidly find information that normally would be time-consuming or impossible to find with keyword searching alone. Additionally, the retrieval of related documents, when combined with judicious sampling techniques, facilitates a more comprehensive understanding of the case and provides valuable insights that can be used in strategic case planning.

Courts recognize the benefits of conceptual searching. In Disability Rights Council of Greater Washington v. Washington Metro Transit Authority, Magistrate Judge Facciola suggested that when compared to keyword searching, concept searching is a more efficient search method that is likely to produce more comprehensive results.

Given the tremendous advantages inherent in utilizing conceptual search in document review, it is surprising that the legal profession has not fully and enthusiastically embraced this revolutionary technology. Addressing this issue, The Sedona Conference^® Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, notes that lack of familiarity with how the technology works and a perceived lack of transparency have served as barriers to the adoption of advanced search technologies, such as conceptual search.

Counsel cannot afford to ignore the benefits of conceptual search. Conceptual search is well understood and defensible when properly employed. Latent semantic analysis, the basis for conceptual search technology, was patented more than two decades ago in 1988. Since then, conceptual search has evolved and reached a level of maturity where it can provide significant benefits.

Counsel should consider partnering with an outside e-discovery expert if unfamiliar with conceptual search, or other aspects of the e-discovery or document review process. The ethical obligation of providing competent representation is met by partnering with an expert, provided that an attorney oversees the discovery work done. Given the tremendous and growing cost of e-discovery, counsel should seek new solutions that balance a comprehensive search with cost.

In conclusion, corporations should be alert to new and evolving search and information retrieval methods, and urge outside lawyers to become conversant in this area. There is no legitimate reason not to utilize powerful conceptual search technologies in conjunction with traditional keyword search; powerful conceptual search brings document review to the next level by decreasing costs, increasing efficiency and providing a greater understanding of the case. Misconceptions that conceptual search is a "black box" or difficult to defend stem from counsel's lack of understanding of the technology. As the Sedona Conference Commentary states, "there is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work." Progressive legal teams will effectuate cost savings and gain a strategic, even decisive, advantage in their case by embracing advanced technologies, such as conceptual search.

Case Law Updates

Court Splits Costs of Privilege Review Due to Failure of Both Parties to Cooperate
Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). In this trade secrets misappropriation litigation, the plaintiff moved to compel the defendant to reproduce e-mails in native format that were previously produced in hard copy. Having been written prior to the effective date of the amendments to the Federal Rules, the plaintiff's document production request did not explicitly include electronically stored information and failed to request a particular format for production. Magistrate Judge Facciola held that both parties played with fire by producing and accepting documents in hard copy form, as they were not reasonably kept in hard copy form in the ordinary course of business. Therefore, the judge ordered the defendant to produce the requested information in native format on a CD and split the costs of privilege review (capped at $4,000) between the parties. Judge Facciola concluded by stating that, "two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time-consuming, and so easily avoided by the lawyers conferring with each other on such a fundamental question as the format of their productions of electronically stored information."

In-House Impact: Courts are losing patience with parties who fail to anticipate and resolve common e-discovery issues. Parties are increasingly being reprimanded by the courts for not engaging in meet and confer conferences and for not proceeding through the e-discovery process in a cooperative manner. Avoid negative consequences by engaging in cooperative, informed and successful discovery.

Court Applies Federal Evidence Rule 502 and Finds Waiver of Attorney-Client Privilege
Relion, Inc. v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D.Or. Dec. 4, 2008). In this patent litigation, the plaintiff moved to enforce a stipulated protective order and sought the return of two inadvertently produced e-mails, alleging they were attorney-client privileged. Analyzing the plaintiff's conduct using Fed.R.Evid. 502(b), the court determined that the plaintiff did not pursue all reasonable means of preserving the inadvertently produced e-mails. The court based its decision on the fact that the plaintiff did not assert privilege until four months after the e-mails were produced, and then only in response to a letter from the defense counsel discussing the two e-mails and the fact that the plaintiff had multiple opportunities to inspect the documents prior to production. The court held that such behavior was tantamount to a failure to pursue all reasonable means of preserving the confidentiality of the documents, which resulted in waiver of the privilege.

In-House Impact:  Since its enactment in September 2008, Federal Rule of Evidence 502 has been relied upon in several recent important e-discovery opinions. While some forecasted FRE 502 would provide greater protection against privilege waiver, many courts have demonstrated that a high degree of care must still be taken to protect against inadvertent production of privileged documents. Conducting due diligence during review and production combat arguments that privilege was waived.

News & Events

The ESI Report – Podcasts for In-House Attorneys Interested in ESI Trends
Kroll Ontrack has partnered with the Legal Talk Network to discuss cutting-edge issues and judicial opinions relating to electronically stored information (ESI). Michele Lange, Director of the Legal Technologies product line for Kroll Ontrack, hosts the podcast series titled "The ESI Report." A recent ESI Report podcast was broadcast live from LegalTech New York 2009. The discussion features experts from across the globe who served as panel members for one of LegalTech's educational programs titled, "Multilingual Madness: Globalization is Colliding with the Complexity of E-Discovery." This program, one of the most popular at LegalTech this year, provides a global perspective on e-discovery from an international panel of experts. Join thousands of other listeners by visiting www.krollontrack.com/legal-technologies-podcasts/.

Enhanced E-Discovery Certification Course Propels Litigation Teams to New Heights
Given current economic conditions, corporate clients are being forced to cut back legal and IT budgets, while the threat of sanctions due to improper ESI handling continues to rise. Become e-discovery certified to prevent your firm or corporation from becoming the next headline. Kroll Ontrack's 2009 E-Discovery Certification Course is ideal for legal and technical professionals of all levels, especially in-house counsel, law firm attorneys, litigation support professionals, paralegals, IT staff and members of the judiciary. Upon completion of this program, you will be able to make informed decisions regarding ESI, be prepared to negotiate at the meet and confer and understand the most current e-discovery law. For more information and to register for an upcoming course, visit www.krollontrack.com/certification-courses/.

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This newsletter is written by Gina Jytyla and Joni Shogren, Kroll Ontrack staff attorneys, with assistance from Kelly Kubacki and Meridith Socha, Kroll Ontrack law clerks. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.