Law Technology Today :: In Support of Concept Search and Content Analysis

In Support of Concept Search and Content Analysis

Concept search and content analysis could be the ideal electronic document review technology if executed properly. While trepidation and misconception have kept the legal community from adopting these discovery strategies, now this technology has the opportunity to become standard practice, that is, once we clear away the miasma of ambiguity.

It is inevitable that attorneys will move beyond key word searching as innovation in search and information retrieval sciences continues, and as the nature of discoverable information itself evolves beyond text into images, sounds, numbers, and traffic patterns that document complex relationships between computer users. A comfort level will result from emerging practices and familiarity with new tools as time goes on. More and more parties will likely stipulate to their usage, and courts will become familiar with the new tools through motion practice and otherwise.... It is simply a matter of time and usage.

Richard Braman ~ Industry thought leader and Executive Director / Founder of The Sedona Conference

In a recent United States District Court decision by Magistrate Judge Facciola, his honor touched upon the use of concept searching by referencing recent scholarship that argues concept searching is “more efficient and more likely to produce comprehensive results” than its counterpart - keyword Boolean searches. While the security and efficacy of concept searching is understood and accepted by some members of the judiciary and bar, it is unknown to or misunderstood by many others. Trepidation by those with little or no experience with concept searching, content analysis, and the underlying technology is understandable. After all, the downside of a poorly executed eDiscovery effort is enormous and can result in the loss of a case, sanctions, and large penalties and monetary awards.

However, when done properly, concept search and content analysis actually represents the best electronic document review technology today. Once better understood, it is likely to become the de facto standard for all eDiscovery processes.

Case Law and Technology – Why the Legal Community Isn’t Commenting

Unfortunately the advance of technology has outpaced the legal community. The courts have not rendered decisions and there’s no case law on-point arguing the effectiveness of search and retrieval, and the use of content analysis engines. This is understandable. Technology, both old and new, only helps locate potentially relevant or responsive documents. It can’t render a legal opinion about their importance in any given case. Regardless of how information is uncovered, what attorney’s do with the information is still what’s most important in the overall process.

Without endorsement by the legal community, litigation teams have been understandably reluctant to adopt concept searching and data analytics in their discovery strategies. Beyond the normal fear of the unknown, attorneys and those who support them have articulated concerns that this new technology may not be defensible. If attorneys were eliminated from the process there would be unacceptable risk. They’ve also expressed fear and disdain for what they consider to be "black box" technology.

In fact, when concept search and content analysis are done properly, these concerns should go away.

Attorneys Stay Involved

In using concept search and content analysis technology, attorney involvement remains critical to success. Attorneys determine which keywords should be used in conjunction with the more powerful analytic capability of concept search technology in order to make their case or calls. The benefit of using the new technology is that it will produce a smaller, more accurate sub set from which to determine whether the content is responsive, relevant or privileged for a reduction of time and cost savings. While the technology is powerful, it does not eliminate the need for attorney involvement in terms of design, scope and supervision of the processes of preservation collection, review and production.

The Black Box Misperception

Many attorneys believe all concept search technologies are “black box” and therefore mysterious and unexplainable. This is a big misperception. Concept search and data-analytics are not mysterious and can be explained. In fact they are being explained to the satisfaction of those in the corporate, legal and governmental sectors. More and more government agencies, top-tier accounting firms, and other companies subject to litigation and regulation are adopting concept search/analytic technology, making it clear the tide is turning.

One important tenet is transparency. Any organization which offers this type of technology solution should be willing and able to explain it in such a way that non-technical audiences will grasp the logic and see the efficiency and the benefit of higher accuracy. Providers should also be prepared to meet with judges and attorneys and when necessary, be willing and able to testify on how the technology works. As the eDiscovery market continues to expand, purchase decision makers need to select a vendor that’s willing and able to eliminate black box concerns to all stakeholders and interested parties.

I share the opinion that the effectiveness of concept search and content analysis technology indicate that their use should become standard practice. Now it’s up to providers of the technology to build the confidence of the legal community by demonstrating transparency and greater accuracy and by clearly demonstrating how the technology works, so that it can become the de facto standard.

1 Disability Rights Council of Greater Washington, et. al, v Washington Metropolitan Transit Authority, et. al.2007 U.S. Dist. Lexis 39605

2 Information Inflation, Can the Judicial System Adapt? By Jason Baron & George Paul. 13 Rich. J.L. & Tech. 10 (2007).

About the Author

Mark V Reichenbach is a thought leader in the litigation support and e-discovery world, Reichenbach served Merrill Lynch’s Office of General Counsel as a Director on the Discovery and Regulatory Response Team (DARRT) and led the organization’s legal hold and collection initiatives. Prior to Merrill Lynch, Reichenbach spent over decade in litigation support directing complex litigation and electronic evidence matters for nationally prominent defense and plaintiff law firms. Reichenbach has been a member of the Sedona Conference Working Group on Electronic Document Retention and Production (WG1) since 2002 and has served as a faculty member for The Sedona Institute CLE programs. He is a member of the Georgetown Law Center's E-Discovery Advisory Board and an experienced CLE instructor. Reichenbach currently serves as Vice President of Client and Industry Development for MetaLINCS.