e-Discovery Search Term Negotiation: The Impact on Time, Money and the Infliction of Emotional Distress

Search term negotiation, the reaching of an agreement with an opposing party about which words and phrases to use when responding to electronic discovery requests, is more relevant than ever. At the heart of the negotiation is a pursuit of the documented facts surrounding litigation, government or regulatory inquiry. Recent high-profile cases have brought the importance of search term negotiation to the public eye. This pursuit of facts and truth should always be of paramount importance within the justice system. However, behind the exercises of collecting relevant data, a different set of dynamics can center around cost, fairness, reasonableness, relevance, technology and time.

Case law and technology continue to evolve in this area, with case law seeming always a step behind the evolution of search engine technology, data and document retention policy. What frequently gets lost or forgotten in this evolution is the increasing burden placed on respondents. Even so, respondents themselves sometimes appear oblivious to the importance of the up-front exercise of agreeing on the terms that drive the search. Legal requirements will frequently dictate some of the search, but more frequently an agreement by both parties on the terms and methods applied to the search for relevant data will contribute more to the time and associated costs.

In-house counsel may not focus on the discovery request and pass these directly to litigation management or IT professionals to respond with little understanding of the broad and deep implications involved. Search tools and algorithms today are much more sophisticated than their Boolean predecessors. Gone are the days when we should allow a search term such as "Pro*" in order to find occurrences of the word Product. Tools now allow professionals to simply input the word "Product" and to then configure the tool to find variations of the word...Produce, Producer, and Production (now called "stemming"). This is only one example of the disconnect and the need for an appreciation of search term negotiations. At the heart of these negotiations there should not be muddying by respondents, nor leverage and pressure from the search terms, requester; the aim should be relevance with due consideration of the time, cost and distress to produce what is requested.

There is a precarious balance to be struck between reasonable search terms and ensuring adequate collection of pertinent data. The legal landscape in this area is not yet clearly mapped and the topography continues to shift. This makes the up-front exercise of negotiating the search terms to be used more important than ever. In today's pressing economic climate, the impacts are felt on time, money and the aggravation and distraction while the focus should remain on the just outcomes.

Be Smart When Choosing a Litigation Support Vendor

The process of weeding out vendors that are incapable of providing exceptional technology solutions is becoming more difficult. We see so many out there trying to expand their customer base by venturing into a "marginally" related fields. For example - take a copier company that has successfully serviced their customer base for decades. They now see a new, expanding market opening up in the area of electronic discovery (eDiscovery). Many of these office machine powerhouses have decided that they could use a little more market share and they begin to market themselves as eDiscovery experts. Why not believe them, you use their copiers in your own office everyday?

Here's the problem - you trust them because they have proven themselves to provide the copier service very well. They have decades of proof with you. What makes you think they can provide that same degree of expertise in something they have never done prior? Scanning a document and processing it for collection for litigation is not the same as taking a piece of paper and duplicating it out the other end. Training and experience are what help real eDiscovery professionals correctly determine such criteria as privilege, duplicate, near-duplicate, and whether a document is responsive. Not having the background to work from puts more corporations, and firms that they used, in greater risk of facing heavy court imposed fines or being taken down with the vendor. Avoid this by using a true professional organization with a proven track record in doing EXACTLY what you are hiring them to do.

The answer is just that simple. Find a vendor that knows the pitfalls and risks. They should fully comprehend you are trusting them to protect you. Investigate their plan by asking questions to ensure you are completely protected. Get references to know they can follow through with that plan throughout the entire process. Having reports and metrics that allow you to manage the litigation on a moment-by-moment basis is a great way to ensure you have the data you need, when you need it. Being fully informed makes every decision you make that much better.

When facing litigation (and we all will at some point according to the experts), go with trusted experts that will allow you to focus on the case. Years of experience go a long way in giving you back your peace of mind. doeLegal has been supporting corporate legal departments and law firms through Litigation for decades. They are ready to show you how to lower your eDiscovery expenses while gaining greater control of the information.
The solutions are here: www.doelegal.com

As our fiscal year comes to a close, we are encouraged with a great year behind us and excited for all that the next year holds for doeLegal. We have added new staff and increased our solution offerings. By adding new capabilities and increasing the value of our cost-cutting answers to corporate legal departments and law firms, we have provided a new path forward for them. No longer are they forced to decide between staff layoff or salary reductions to cut costs. They have a new answer, thanks to doeLegal's cost-effective, hosted legal services.

By offloading much of the in-house eDiscovery and eBilling tasks, the attorneys and their support staff can focus on their core responsibilities that bring revenue into their organization. Letting data hosting specialists take over those "other" tasks can increase employee morale, give executives more options, help every company go "green", and provide a better bottom line in the long run. doeLegal has no long-term contracts, ensures 24/7 access to data and support, provides a typical payback period within one (1) year, and hosts the data in their own Tier-3 Data Center. That is a complete solution provider, not just a service provider.

How expensive do you think hosting 3 terabytes of litigation data on your own servers is? Take into account the added support staff (or overwork what you have), the added storage devices, and the added risk of leaving your servers open to outside access.

With a doeLegal hosted solution:
• Only the required data is hosted on the remote server
• The support is handled at the host
• storage capacity is flexible so you only pay for what you use

We have a great story to tell and we can't wait to offer the best ending any legal organization can hope for - lower legal costs, better job satisfaction, and renewed financial strength in these challenging times. We are ready if you are! Call 302-798-7500 and ask to an expert or visit www.doelegal.com/savemore.

doeLegal Journal is the new blog for doeLegal

Come back as often as you like to post comments and stories about doeLegal and doeTechnologies. We have been serving the legal and business communities by leveraging technology to improve efficiency while increasing control over rising costs. Our core competency is in providing safe and secure hosted applications to a global customer base.

We specialize in Litigation Hosting, Litigation Support, Electronic Billing (eBilling), Electronic Discovery (eDiscovery) , EDD Processing, Case and Matter Management, Records and Content Management, Web Design, Advertising Design, State Bar CLE Administration, and Legal Service planning and Consultation.

Check us out at http://www.doelegal.com/ to see more about us. We are ready to demonstrate how partnering your IT and legal staff with our performance solutions can make a difference in your bottom line. Call 302-798-7500 to speak to a true service professional today!

Thanks for reading and feel free to post a comment until we come back up to write more. :-)