Canadian Lawyer

18 J a n u a r y 2 0 1 5 w w w . C a n a D I a n L a w y e r m a g . c o m Lawyers don't usually just get the hot documents from their clients any- more as they can't really produce them because they are now buried and inter- mingled with other documents, such as within an e-mail box, or on a computer with one or more disorganized drives, or those documents may be somewhere else like the cloud or on a thumb drive. Lawyers know that few clients are really capable of organizing their informa- tion anymore. Or, even when a client is organized, it may not be holding the information in the way required for liti- gation. Very few clients store data in file folders conveniently labelled "duty of care" or "special damages — supporting calculations." Which is why any substantial e-dis- covery effort turns to search, includ- ing search strategy and technology. Let's spend some time dissecting search, because there is a whole world of search that most lawyers leave uncharted. Lawyers are most familiar with key- word searches and Boolean operators. That is because almost every lawyer has learned to do legal research using an online case law system designed and structured to be used with keyword search. Additionally, lawyers who have used many document review tools have also relied heavily on keyword searches. The good news is keyword search- ing can be very effective in online case law systems and, in some circumstanc- es, can be effective to find potentially responsive or privileged documents in document review tools. That is because the data within those tools has already been curated — specially prepared and organized for keyword searches. More- over, those tools are also designed to ensure keyword and Boolean searches will work. When you pull up the search function it is usually designed with a space to enter in keywords and a space for Boolean operators. In previous arti- cles discussing indexation and noise words and their role in search, I have explained why and how these tools have been designed this way. The impor- tant takeaway is that keywords work in these systems because they have been designed for this. The bad news is lawyers cannot t E C h s u p p o rt wise trial lawyer of the greyish set said to me, not without exasperation: "This e-discovery stuff is a bother. When I started practice, I would ask the client for the hot documents, and they would be sent to me." How times have changed. Generally, clients aren't actively trying to keep hot documents out of their lawyer's hands. Clients appreciate that the sooner the lawyer understands the facts, the sooner that lawyer can give them good advice. And few clients are thrilled by the prospect of paying for lawyers to pour over trivial documents, which can happen when e-discovery is poorly planned or implemented. There is a whole world of search that most lawyers have yet to discover. By Dera J. Nevin Uncharted territory A dnevin@proskauer.com o p I n I o n

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