Don't let your e-discovery give your game away, says Robert Jones




In the digital age, discovery will often mean sifting through large quantities of unstructured and immaterial data to find the information that matters most. Searching technologies can ease the burden and have clear rewards to offer when dealing with immense amounts of documents.



But it is important for parties to ensure that, in disclosing keyword lists to the other side, they do not give too much away about their arguments and their case. So it is vital for lawyers to find the right balance between securing all the information required to strengthen their own position and not show their hand at too early a stage.



Provided the parties have a good understanding of the issues, discussions relating to keywords, custodians, locations and devices are not a strategic concession - they are a way of maintaining an equal footing. Also, by discussing relevant keywords at an early stage, litigants can further distil the facts to uncover key issues rapidly, and avoid unnecessarily long legal battles.



Where the facts of the case are not yet fully understood, you should consider using one or more of the following approaches:



l Agree upon broadly relevant search terms to identify the universe of potentially relevant documents. Each party may then review those documents, by whatever means necessary, without divulging potential weaknesses or exposures;

l Lawyers do not normally have to disclose how they approached the mechanical process of reviewing documents, so documents are often prioritised by theme using further detailed searches to help them review and understand issues quickly;

l Keyword lists can be run and revised to ensure a suitable list is produced. This allows a more detailed search to be done during the review stage while complying with disclosure obligations;

l New topic-grouping technologies are emerging as an alternative to keyword strategies. These can automatically analyse the document population and identify logical themes for review.



Intelligent technologies such as concept-searching and topic-grouping will allow lawyers to gain immediate insight into the content of a document collection. But the key to the successful use of such technology is in understanding how to use it effectively, always balancing the need to gather information with the risk of conceding your strategic advantages.



Robert Jones is a consultant for Kroll Ontrack