This is part five of the continuing series on two-filter document culling. This is very important to successful, economical document review. Please read parts onetwothree and four before this one.

More on the Dangers of Keyword Culling 

In some cases keyword collections may be as risky as in the complex Biomet case, but may still be necessary because of the proportionality constraints of the case. The law does not require unreasonably excessive search and review, and what is reasonable in a particular case depends on the facts of the case, including its value. See my many writings on proportionality, including my law review article Predictive Coding and Proportionality: A Marriage Made In Heaven26 Regent U. Law Review 1 (2013-2014). Sometimes you have to try for rough justice with the facts that you can afford to find given the budgetary constraints of the case.

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The danger of missing evidence is magnified when the keywords are selected on the basis of educated guesses or just limited research. This technique, if you can call it that, is, sadly, still the dominant method used by lawyers today to come up with keywords. I have long thought it is equivalent to a child’s game of Go FishIf keywords are dreamed up like that, as mere educated guesses, then keyword filtering is a high-risk method of culling out irrelevant data. There is a significant danger that it will exclude many important documents that do not happen to contain the selected keywords. No matter how good your predictive coding may be after that, you will never find these key documents.

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If the keywords are not based on a mere guessing, but are instead tested, then it becomes a real technique that is less risky for culling. But how do you test possible keywords without first collecting and ingesting all of the documents to determine which are effective? It is the old cart before the horse problem.

One partial answer is that you could ask the witnesses, and do some partial reviews before collection. Testing and witness interviews is required by Judge Andrew Peck’s famous wake up call case. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134, 136 (S.D.N.Y. 2009). I recommend that opinion often, as many attorneys still need to wake up about how to do e-discovery. They need to add ESI use, storage, and keyword questions to their usual new case witness interviews.

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Interviews do help, but there is nothing better than actual hands on reading and testing of the documents. This is what I like to callgetting your hands dirty in the digital mud of the actual ESI collected. Only then will you know for sure the best way to mass-filter out documents. For that reason my strong preference in all significant size cases is to collect in bulk, and not filter out by keywords. Once you have documents in the database, then you can then effectively screen them out by using parametric Boolean keyword techniques. See your particular vendor for various ways on how to do that.

By the way, parametric is just a reference to the various parameters of a computer file that all good software allows you to search. You could search the text and all metadata fields, the entire document. Or you could limit your search to various metadata fields, such as date, prepared by, or the to and from in an email. Everyone knows what Boolean means, but you may not know all of the many variations that your particular software offers to create highly customized searches. While predictive coding is beyond the grasp of most vendors and case managers, the intricacies of keyword search are not. They can be a good source of information on keyword methods.

To be continued …..