Seek and Ye Shall Find?
Winter 2008

After collecting electronic data from their clients, litigators typically use search terms to retrieve relevant information from electronic databases. When an electronic file contains one or more of the search terms, it is reviewed and produced. When a file does not contain a search term, it is considered irrelevant and is not produced. But how effective is this approach?

Let’s say you represent the manufacturer of a cell phone microchip known as the AX45724-1. Using innovative technology, the AX45724-1 emits radio waves that have been shown to reduce global warming. Environmentally-conscious consumers are buying “Green Phones” in droves.

A competing manufacturer, EnviroChips, Inc., accuses your client of stealing its trade secrets. In a lawsuit, EnviroChips claims that your client hacked into its computer network, stole its secret microchip designs, and shamelessly appropriated its technology.

Your client gathers vast amounts of electronic data that might relate to the dispute. Knowing that it would be costly and time-consuming to review every bit of that data, you decide to use search terms to identify potentially relevant electronic files. But what terms to use? You pull out a legal pad and read through the complaint, writing down the important words: “AX45724”; “green”; “EnviroChips.” You include the scientific terms at issue: “mega-oscillation”; “superheterodyning”; “nano-topology”; “logo-Euclidian metronization.” You provide the list to your client contact, who says it looks fine to her. She adds that the employees sometimes refer to the chip as “AX” and suggests that you include that term as well.

You provide the list to an e-discovery vendor who identifies all electronic files containing the terms. Your team reviews these files, eliminating privileged documents and “false positives” (for example, an e-mail solicitation from Ralph Nader’s Green Party), and you produce what’s left to EnviroChips. You are confident that your search has identified most, if not all, of your client’s relevant electronic files. After all, you conclude, any employee writing about these issues must have used at least one of the terms on your list.

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