Key to understanding and explaining the search process, and therefore enhancing the transparency and reliability of that process, is a thorough understanding of the overall search process. Below is a high-level abstraction of the search process laying out the five major phases for performing an effective search in the context of E-discovery. Each of the phases is described briefly below and in greater detail in the following sections of this guide.
The following sections elaborate this.
4.1. Define the Search
The first step in the search process is to identify the purpose of the search exercise, and the goals to be achieved. A variety of reasons for conducting a search of data exist, ranging from a massive data reduction project to limit the scope of the document review, to pin-point identification of particular documents for purpose of an investigation or early-case assessment. Other goals of the search may be, for example, to identify potentially privileged documents, or potentially responsive (or unresponsive) material. Regardless of the specific purpose of the search, litigants can best maximize the success of the search process by defining the purpose and goals of the exercise. Considerations during this definition process include, but are not limited to:
- Identification of the target data that is being sought within the overall data corpus
- Identification of the desired results at the end of the search process (i.e., the defined deliverables)
- Exploration of the project’s tolerance for risk of being under-inclusive or over-inclusive in search results
- Identification of cost constraints and budgetary considerations for the project
- Consideration of how the search process “fits” into the overall discovery, document production and case strategy
- Consideration of who is best positioned to conduct and implement the search – e.g., a vendor, outside counsel, in-house counsel and staff
- Understanding of how the case team will justify the completeness and reasonableness of the searches, and identification of the criteria that will be used to evaluate and substantiate the efficacy of the process
The process of defining the search is explored more in Section 6 and Section 7 of this guide.
4.2. Plan and Structure the Search
The next step in the search process is to plan and structure the search. Planning includes identification of the scope of data to be searched, who will conduct the search, and the technology and process that will be used to implement the search. For example, consideration should be given to the type of search which is most appropriate in the circumstances (keyword, concept, etc.), the use of text and/or metadata searches (e.g., searching for occurrence of terms in the text or fielded metadata like date ranges), and the output of the results of the search for testing and validation. Each of these topics are discussed in detail below in Section 6 (scope of the search), Section 8 (search methods) and Section 9 (search technology).
4.3. Execute the Search
Next in the search process is the execution of the search. All the definitional and planning work that preceded this step are now put to the test as the actual search is run using the technology tools on the assembled data. During execution the search is monitored, and the process and results of the search are captured, and documented. As a part of this process the results of the search may be communicated to the client or consumer of those results via a “hit” report, sample data, or other similar methods. The process of documenting the search process and results is discussed in more detail below in Section 8.
4.4. Validate the Search
Validation of the efficacy of the search process is paramount to insuring its comprehensiveness and effectiveness. At bottom, the validation steps seeks to determine if the search “worked” — that is, did the search include all of the records that were to be searched and did it achieve the goals established during the definition phase described above. Details regarding this measurement and validation process are explored more fully in Section 9 below.
4.5. Report
Section 8 of this document explores in detail the manner in which the results of the search may be documented and presented. This documentation and reporting step is an integral aspect of presenting the decision-makers (e.g., the case team attorneys) with sufficient information to properly evaluate the results of the search, and the efficacy of the current search process. Absent clear and sufficient reporting, the attorneys and client will be unable to assess whether the search was sufficient to meet their case needs. And while the initial reporting should be considered iterative — meaning the report may cause the search to be modified and re-run — the final aspect of the search and reporting process will likely be documentary findings of the population of records that were searched, the search method and parameters used to execute the search and the results which could be shared with opposing counsel or the court as necessary to justify and explain the process.