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Courtroom Commentary

No case law yet specifically upholds or rejects predictive or concept searching, says Scott Kane, a partner at Squire Sanders & Dempsey.

Perhaps Judge John Facciola of the Federal District Court for the District of Columbia comes the closest to the issue, stating in dicta in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority: "I bring to the parties' attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results." In United States v. O'Keefe, Facciola notes that whether search terms will yield information sought is "a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics."

Whatever the specific technology, checking for accuracy manually is essential, as noted by Judge David Baker of the Federal District Court for the Middle District of Florida in In re Seroquel Products Liability Litigation: "Common sense dictates that sampling and other quality assurance techniques must be employed to meet requirements of completeness."

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